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
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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
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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
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Xxxx Xxxxxx Xxxxxxxx Xxxxx
The Vantage Group Ltd. Xxxxxx Financial Corporation
