EXHIBIT 10.43
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ADVISORY AGREEMENT
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THIS AGREEMENT (the "Agreement") dated as of September 6, 2001 (the
"Effective Date"), by and between CELERITY SYSTEMS, INC., hereinafter referred
to as "Celerity" or the "Company," and INTERNET FINANCE INTERNATIONAL
CORPORATION, hereinafter referred to as "Advisor."
The Company desires to engage Advisor to provide strategic planning,
advisory and business consulting services to it, and Advisor desires to provide
strategic planning, advisory and business consulting services to the company. It
being understood that the services provided to the Company shall be from
Internet Finance International or its designated affiliates.
Accordingly, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. TERM OF AGREEMENT. Commencing on the Effective Date, Advisor
shall be retained by the Company for a period of one (1) year from the date
hereof. This Agreement shall be renewable upon mutual agreement of the parties
for additional six (6) month periods. The initial one (1) year period and any
extensions or renewals thereof shall constitute the "Consulting Term."
SECTION 2. POSITION AND RESPONSIBILITIES. Advisor shall serve as a
Business Advisor to the Company and render such advice and services to the
Company as may be reasonably requested by the Company including, without
limitation, Investor relations, equity and/or debt financings, advising the
Company with respect to the direction of the Company's marketing plan, strategic
planning, merger and acquisition possibilities and business development
activities. During the Consulting Term, Advisor shall report directly to the
Chief Executive Officer or such other senior officer of the Company as shall be
designated by the Chief Executive Officer of the Company. Subject to the terms
and conditions set forth herein, Advisor agrees to undertake on a best-efforts
basis such planning, consultative and advisory services as the Company shall
reasonably request in connection with the Company's business.
Both parties shall agree, in advance, to estimated time periods for
completing any and all projects. In the event the actual time used in completing
a project is excessively more or less than estimated, the Company may, in its
sole discretion, modify such estimated time periods and expectations. Not
meeting a specific time period does not constitute breach nor does it provide
for cause pursuant to the termination of this Agreement.
SECTION 3. COMPENSATION.
3.1. FINDER'S FEE. In the event Advisor raises additional capital,
initiates a strategic alliance or arranges for a merger, acquisition or Joint
Venture for the Company (the "Transaction"), Company shall deliver to Advisor in
exchange for such Transaction a percent of the proceeds equal to two and
one-half percent (2.5%) obtained from said Transaction to be paid from the
proceeds. In the case where the total compensation is made in stock, the full
fee will be paid as stock. The performance-based compensation will be based upon
the valuation of the Company, or enterprise value of any joint venture or
strategic alliance pursuant to the Transaction, and will be delivered to Advisor
upon the closing of said Transaction. All such compensation will include any
deferred payments, payouts, earn-outs or subsequent financing the Company shall
receive for a period ending three (3) years from the date of this Agreement for
any party introduced by Advisor to Company. The Company shall pay to Advisor all
compensation fees directly from the proceeds of any Transaction and warrants it
will list Advisor as a payee in all closing documents.
3.2. RETAINER FEE. Company shall grant to Advisor compensation in the
amount of Five Hundred Thousand (500,000) warrants representing the company's
common stock, having a term of three (3) years and priced as 250,000 warrants at
$.15 (fifteen cents) and 250,000 warrants at $.25 (twenty-five cents). Said
compensation will be granted to Advisor upon the execution of this Agreement and
will be registered via Form S-8 or similar registration statement. The warrants
shall be fully registered, non-assessable, non-cancelable, unrestricted,
unencumbered and have customary anti-dilution provisions.
3.3. PERFORMANCE-BASED WARRANTS. Company shall grant to Advisor
warrants in the Celerity's common stock as additional compensation based upon
financing raised for Company. For each $500,000 of capital raised for Company by
Advisor, Company shall grant to Advisor 250,000 warrants having a three (3) year
term and priced at $.15 (fifteen cents). All such warrants will be registered
upon the earlier of ten (10) business days form the date of said financing or
the Company's next registration statement. All such warrants shall be fully
registered, non-assessable, non-cancelable, unrestricted, unencumbered and have
customary anti-dilution provisions.
SECTION 4. EXPENSES. The Company shall reimburse Advisor for all
expenses incurred by Advisor in furtherance of its duties and the business and
affairs of the Company against expense reports and/or receipts provided by
Advisor to the Company or other proof of Advisor's expenditures. Said
reimbursement by Company to Advisor will be made within 30 days of receipt of
said expense reports and/or invoice.
SECTION 5. CONFIDENTIAL INFORMATION.
5.1. CONFIDENTIAL INFORMATION. Advisor agrees that during the course of
his Consulting Term and at any time after termination, her will keep in
strictest confidence, and will not disclose or make accessible to any other
person without the written consent of the Company, the Company's products,
services and technology, both current and under development, promotion and
marketing programs, lists, trade secrets and other confidential and proprietary
business information of the Company or any of its clients and third parties
including, without limitation, Proprietary Information (as defined in Section 6)
(all the foregoing is referred to herein as the "Confidential Information").
Advisor agrees: (i) not to use any such Confidential Information for himself or
others; and (ii) not to take any such material or reproductions thereof from the
Company's facilities at any time during the Consulting Term except, in each
case, as required in connection with Advisor's duties to the Company.
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Notwithstanding the foregoing, the parties agree that Advisor is free
to use: (i) information in the public domain not as a result of a breach of this
Agreement, (ii) information lawfully received from a third party who had the
right to disclose such information and (iii) Advisor's own independent skill,
knowledge, know-how and experience to whatever extent and in whatever way he
wishes, in each case consistent with his obligations as Advisor and that, at all
times, Advisor is free to conduct any research relating to the Company's
business.
SECTION 6. OWNERSHIP OF PROPRIETARY INFORMATION. Advisor agrees that
all information that has been created, discovered or developed by the Company,
its subsidiaries, affiliates, licensors, licensees, successors or assigns
(collectively, the "Affiliates") (including, without limitation, information
relating to the development of the Company's business created, discovered and
developed by the Company or any of its affiliates during the Consulting Term,
and information relating to the Company's customers, suppliers, Advisors and
licensees) and/or in which property rights have been assigned or otherwise
conveyed to the Company or the Affiliates, shall be the sole property of the
Company or the Affiliates, as applicable, and the Company or the Affiliates, as
the case may be, shall be the sole owner of all patents, copyrights and other
rights in connection therewith, including, without limitation, the right to make
application for statutory protection. All the aforementioned information is
hereinafter called "Proprietary Information." By way of illustration, but not
limitation, Proprietary Information includes trade secrets, processes,
discoveries, copyrights, formulas, improvements, inventions, product concepts,
techniques, marketing plans, strategies, forecasts, blueprints, sketches,
records, notes, devices, drawings, customer lists, patent applications,
continuation applications, continuation-in-part applications, file wrapper
continuation applications and divisional applications and information about the
Company's Affiliates, its employees and/or Advisors (including, without
limitation, the compensation, job responsibility and job performance of such
employees and/or Advisors).
All original content, proprietary information, trademarks, copyrights,
patents or other intellectual property created by Advisor that does not include
any specific information relative to the Company's proprietary information,
shall be the sole and exclusive property of Advisor.
SECTION 7. TERMINATION.
7.1. DEATH OR DISABILITY OF ADVISOR. This Agreement and Advisor's
engagement hereunder shall terminate upon the earlier of the end of the
Consulting Term or upon Advisor's death.
7.2. TERMINATION BY THE COMPANY FOR JUST CAUSE. Any of the following
actions by Advisor shall constitute just cause and give the Company the right to
immediately terminate Advisor:
(a) Breach by Advisor of this Agreement;
(b) Acts or omissions involving willful or intentional
malfeasance or misconduct that is injurious to the Company, monetarily,
reputationally or otherwise;
(c) Commission of an act of fraud against the Company; and
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(d) Acts or omissions constituting a material breach of
Advisor's obligations under this Agreement.
7.3. Upon thirty (30) days' advance written notice to the other party,
all expense fees due and owing pursuant to Section 4 will immediately become due
and payable.
7.4. Upon termination pursuant to subsections 7.1, 7.2 or 7.3 of
Section 7, Sections 3.1, 5, 6 and 8 of this Agreement shall remain in full force
and effect.
SECTION 8. REPRESENTATIONS. The acts, statements and representations
made by Company to Investors or any third party are the sole responsibility of
Company, and Company agrees to indemnify Advisor and its officers, directors,
members, managers, employees, attorneys and agents for any liability, claims,
losses and expenses, including legal expenses, incurred by Advisor that result
from Company's representations. Advisor agrees to indemnify the Company for any
liability, claims, losses and expenses incurred by Advisor that result from the
Advisor's representations which are not based upon information provided by the
Company. Company represents that all materials provided to Advisor or any third
party regarding the Company's affairs or financial conditions are truthful and
accurate.
SECTION 9. NOTICES. Any notice or other communication under this
Agreement shall be in writing and shall be deemed to have been given: when
delivered personally against receipt therefor, one (1) day after being sent by
Federal Express or similar overnight delivery; or five (5) business days after
being mailed registered or certified mail, postage prepaid, to a party hereto at
the address set forth below, or to such other address as such party shall give
by notice hereunder to the other party to this Agreement.
If to Company: Celerity Systems, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Mr. Xxxxxxx Van Meter
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Advisor: Mr. Xxxxx Xxxx
Internet Finance International Corporation
0 Xxxxxxxxx Xxxxx, Xxxxx #0X
Xxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 10. SEVERABILITY OF PROVISIONS. If any provision of this
Agreement shall be declared by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced in whole or in part, the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provisions shall be deemed dependent upon any other covenant
or provisions unless so expressed herein.
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SECTION 11. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the
entire agreement of the parties relating to the subject matter hereof, and the
parties hereto and thereto have made no agreements, representations or
warranties relating to the subject matter of this Agreement which are not set
forth herein. No amendment or modification of this Agreement shall be valid
unless made in writing and signed by each of the parties hereto.
SECTION 12. BINDING EFFECT. The rights, benefits, duties and
obligations under this Agreement shall inure to, and be binding upon, the
Company, its successors and assigns. This Agreement constitutes a personal
service agreement, and the performance of Advisor's obligations hereunder may
not be transferred or assigned by Advisor and any such purported transfer or
assignment shall be null and void, unless otherwise agreed to in writing.
SECTION 13. THIRD-PARTY BENEFICIARIES. This Agreement is for the
benefit of the parties hereto and their permitted successors and assigns and is
not intended to confer upon any other person or entity any rights or remedies
hereunder.
SECTION 14. NON-WAIVER. The failure of any party to insist upon the
strict performance of any of the terms, conditions and provisions of this
Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions and provisions shall remain in
full force and effect. No waiver of any term or condition of this Agreement on
the part of any party shall be effective for any purpose whatsoever unless such
waiver is in writing and signed by such party.
SECTION 15. REMEDIES FOR BREACH. Advisor and Company mutually agree
that any breach of Sections 5, 6, 8 or 9 of this Agreement by Advisor or Company
may cause irreparable damage to the other party and/or its Affiliates, and that
monetary damages alone would not be adequate and, in the event of such breach or
threat of breach, the damaged party shall have, in addition to any and all
remedies at law and without the posting of a bond or other security, the right
to an injunction, specific performance or other equitable relief necessary to
prevent or redress the violation of either party's obligations under such
Sections. In the event that an actual proceeding is brought in equity to enforce
such Sections, the offending party shall not urge as a defense that there is an
adequate remedy at law nor shall the damaged party be prevented from seeking any
other remedies which may be available to it.
SECTION 16. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
without regard to such State's principles of conflicts of laws. The parties
irrevocably and unconditionally agree that the exclusive place of jurisdiction
for any action, suit or proceeding ("Actions") relating to this Agreement shall
be in the courts of the United States of America sitting in the County of Nassau
or, if such courts shall not have jurisdiction over the subject matter thereof,
in the courts of the State of New York sitting therein, and each such party
hereby irrevocably and unconditionally agrees to submit to the jurisdiction of
such courts for purposes of any such Actions. If any such state court also does
not have jurisdiction over the subject matter thereof, then such an action, suit
or proceeding may be brought in the federal or state courts located in the
states of the principal place of business of any party hereto. Each party
irrevocably and unconditionally waives any objection it may have to the venue of
any Action brought in such courts or the convenience of the forum. Final
judgment in any such Action shall be conclusive and may be enforced in other
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jurisdictions by suit on the judgment, a certified or true copy of which shall
be conclusive evidence of the fact and the amount of any indebtedness or
liability of any party therein described.
SECTION 17. HEADINGS. The headings of the Sections are inserted for
convenience of reference only and shall not affect any interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
ADVISOR:
INTERNET FINANCE INTERNATIONAL
CORPORATION
By:
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Xxxxx Xxxx
President & CEO
COMPANY:
CELERITY SYSTEMS, INC.
By:
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Xxxxxxx Van Meter
Chief Executive Officer
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