ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ( the "Agreement") is made this 13th day of
September 1999, by and between A-Z Professional Consultants, Inc., a Utah
corporation ("Advisor") and XxxxxXxx.xxx a Delaware corporation with its offices
located in Ft. Lauderdale, Florida (the "Company").
WHEREAS, Advisor and Advisors'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 it's 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 brokers and dealers, public relations firms and
consultants and others that may assist the Company in its plans and
future and create a research report for the Company (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. The Parties agree that this Agreement is
not exclusive as to either party and each if free to contract with
third parties for the same or similar services.
2. Term
This Agreement shall have an initial term of one (1) year (the "Primary
Term"), commencing with the Effective Date. At the conclusion of the
Primary Term this Agreement will automatically be extended on an annual
basis ( 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.
3. Time and Effort of Advisor
Advisor shall allocate time and Advisors 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 liable to the Company or
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any of its shareholders for any act or omission in 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 (as defined herein) undertaken by the Company as a
result of advice provided by Advisor or Advisors'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 Four Hundred Thousand
(400,000) shares of the Company's common stock as an initial fee, One
Hundred Thousand (100,000) of such shares shall delivered within seven
(7) day of the execution hereof, the remaining Three Hundred Thousand
(300,000) in ten equal monthly installments of Thirty Thousand (30,000)
shares beginning sixty (60) days after the execution hereof. All of
these shares may be restricted shares of the Company's common stock .
All shares transferred are considered fully earned and non-assessable
as of the date hereof.
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 value of 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 if an acquisition is made at the Company's option, if paid in
cash the Transaction Fee shall be reduced to five percent 5%.
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 set forth herein.
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. At the Company's option such payments may be in the
form of common stock of the Company.
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.
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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 Asset Opportunity or Business
Opportunity introduced by Advisor, and to make all final decisions with
respect to effecting a transaction on any Business Opportunity.
10. Rejected Asset Opportunity or 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 selected 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 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.
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(i) If during the Primary Term of this Agreement or any
Extension Period, Advisor is unable 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 any time by the Company upon written notice to the
Advisor, with or without cause; or
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(B) By Advisor.
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(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, other than in an
Initial Merger, 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 Initial Fee, 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.
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 unreimbursed expenses, Advisory Fee and
Transaction Fee accrued up to and including 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
reimbursable expenses, Transaction Fee, if any, and for the remainder
of the unexpired 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. Remedies
Advisor and the Company acknowledge that in the event of a breach of
this Agreement by either party, money damages would be inadequate and
the non-breaching party would have no adequate remedy at law.
Accordingly, in the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a
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decree of specific performance. Such remedy, however, shall be
cumulative and nonexclusive and shall be in addition to any other
remedy to which the parties may be entitled.
15. 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.
(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:
XxxxxXxx.xxx
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attention: Xxxxxx Xxxxx Xxxxxxx, President
(ii) In the case of Advisor:
A-Z Professional Consultants, Inc.
000 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attention: XxxxxxXxxx X. Xxxxxxxx, President
or to such other person or address designated in writing by the Company or
Advisor to receive notice.
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(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 United States of America.
(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 understan dings, 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.
(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.
The "Company" "Advisor"
XxxxxXxx.Xxx A-Z Professional Consultants, Inc.
A Delaware Corporation A Utah Corporation
By: /s/ Xxxxxx Xxxxx Xxxxxxx By: /s/ XxxxxxXxxx X. Xxxxxxxx
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Name: Xxxxxx Xxxxx Xxxxxxx Name: XxxxxxXxxx X. Xxxxxxxx
Title: President Title: President
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