Exhibit 99.4(v)
Financial Advisory Agreement - Xxxxx Xxxxx
FINANCIAL ADVISORY AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 1st day of July, 1997.
BETWEEN:
MICRA SOUNDCARDS INC., a
corporation governed by the laws of the Province of Ontario
(hereinafter referred to as the "Company")
OF THE FIRST PART
-and-
XXXXX XXXXX, an
individual resident in the Province of Ontario
(hereinafter referred to as the "Advisor")
OF THE SECOND PART
WHEREAS the Company is desirous of retaining the Advisor as its agent, on a
non-exclusive basis, to provide certain financial advisory services based on his
knowledge, experience, reputation and contacts and to assist the Company in the
analysis of Canadian and United States equity markets;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises
and the covenants and agreements hereinafter contained, it is mutually agreed by
and between parties hereto as follows:
1. The Company hereby agrees to retain the Advisor on a non-exclusive basis as
the financial advisor to the Company for a period of three (3) years from the
date hereof; provided, however, that either party may, at its option, terminate
this Agreement at any time.
2. As the financial advisor to the Company, the Advisor hereby agrees to provide
to the Company, as and when mutually agreed upon by the parties hereto from time
to time, the following specific services:
(a) an ongoing assessment of the available methods of financing the
operations and undertakings of the Company in Canada and the
United States;
(b) general advice as to accessing public and private capital markets
in Canada and the United States;
(c) an assessment of the impact on the market in Canada and the
United States for securities of the Company; and
(d) strategic planning services and negotiations with potential
investors, joint venture partners, venture capital firms and
other financiers identified by the Advisor.
3. The Advisor agrees to perform his services during the term of this Agreement
honestly and in good faith with a view to the best interests of the Company.
4. The Advisor represents and warrants to the Company that, under applicable
Canadian laws, that either he has all registrations, licences, permits and
authorization necessary or desirable in order to perform the services provided
for hereunder or that no such registrations, licences, permits and
authorizations are necessary.
-2-
5. (a) In consideration for the services to be rendered by the Advisor
hereunder, the Company hereby agrees to pay to the Advisor a fee of CDN$25,000
per year during each year of the term of this Agreement, such fee to be
satisfied through the issuance to the Advisor (or as he may otherwise direct) of
common shares of the Company having an ascribed value of $0.50 per share. If the
Company should, at any time, or from time to time hereafter, effect a stock
split, a reverse stock split, or a recapitalization, the number of common shares
issuable to the Advisor shall be proportionately adjusted.
(b) In addition to any applicable standard fees payable to the Advisor in
connection with the services to be provided by the Advisor hereunder, the
Company shall reimburse the Advisor for all reasonable expenses that he may
incur in providing the services contemplated hereunder forthwith upon receipt of
the Advisor's account with supporting documentation therefor; provided, however,
that all such expenses shall have been approved by the Company in advance.
6. The Company hereby undertakes and agrees to provide the Advisor with all
information, documentation, reports and assistance, which the Advisor may
require from time to time in order to adequately perform his obligations under
this Agreement. The Company hereby further undertakes and agrees to deliver to
the Advisor copies of any and all information released to the public and/or
filed with any regulatory body contemporaneously with such release and/or
filing.
7. (a) The Company hereby agrees to indemnify and hold the Advisor harmless from
and against any and all losses, claims, damages, liabilities, costs or expenses
(collectively "Claims") arising out of any action or cause of action brought
against the Advisor in connection with the services rendered under this
Agreement, except for (i) any Claims resulting from any violation by the Advisor
of applicable laws and regulations including, without limitation, those of the
Ontario Securities Commission; (ii) Claims resulting from any act of negligence
or wilful misconduct by the Advisor; and (iii) any amount paid in settlement of
any Claim that is settled without the Company's prior written consent.
(b) The Advisor hereby agrees to indemnify and hold the Company and its
directors, officers and employees harmless from and against any and all Claims
resulting from (i) any violation by the Advisor of applicable laws and
regulations in Canada or the United States including, without limitation, those
of the Ontario Securities Commission; or (ii) any act of negligence or wilful
misconduct by the Advisor.
8. Time shall in all respects be of the essence of this Agreement.
9. Nothing in this Agreement shall be construed to constitute the Advisor as a
partner, employee, or agent of the Company; nor shall either party have any
authority to bind the other in any respect, it being intended that the Advisor
is and shall remain an independent contractor.
10. This Agreement may not be assigned by either party hereto, shall be
interpreted in accordance with the laws of the Province of Ontario and shall be
binding upon the successors of the parties.
11. Any notice, document or other communication required or permitted by this
Agreement to be given by a party hereto shall be in writing and will be
sufficiently given if delivered personally, or if sent by prepaid ordinary mail
posted in Canada, or if transmitted by any form of telecommunication (which is
tested prior to transmission, confirms to the sender the receipt of the entire
transmission by the recipient and reproduces a complete written version of the
transmission at the point of reception) to such party addressed as follows:
(a) if to Micra SoundCards Inc., at:
000 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx
X0X 0X0
-3-
(b) if to the Advisor, at:
X.X. #0
Xxxxxxxxx, Xxxxxxx
X0X 0X0
Any notice so mailed shall be deemed to have been given on the third business
day after deposit in a post office or public letterbox. Neither party shall mail
any notice, request or other communication hereunder during any period in which
postal workers are on strike or if such strike is imminent and may reasonably be
anticipated to affect normal delivery of mail. Notice transmitted by a form of
recorded telecommunication or delivered personally shall be deemed given on the
day of transmission or personal delivery, as the case may be. Any party may from
time to time notify the other in the manner provided herein of any change of
address which thereafter, until changed by like notice, shall be the address of
such party for all purposes hereof.
12. The parties agree to execute and deliver to each other such further
instruments and other written assurances and to do or cause to be done such
further acts or things as may be necessary or convenient to carry out and give
effect to the provisions of this Agreement or as any of the parties may
reasonably request in order to carry out the transaction contemplated herein.
13. This Agreement sets forth the entire agreement among the parties hereto
pertaining to the specific subject matter hereof and replaces and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties hereto, and there are no warranties, representations or
other agreements, whether oral or written, express or implied, statutory or
otherwise, between the parties hereto in connection with the subject matter
hereof except as specifically set forth herein. No supplement, modification,
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby.
14. This Agreement shall be binding upon and shall ensure to the benefit of the
parties hereto and their respective successors and permitted assigns.
15. This Agreement may be executed and delivered by facsimile transmission and
in counterparts, each of which when taken together shall be deemed to constitute
one and the same legally binding instrument.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the
date first above written.
MICRA SOUNDCARDS INC.
Per: (signed) "Xxxxxx Xxxxxxxxxx"
--------------------------------
Xxxxxx Xxxxxxxxxx,
President and Chief Executive Officer
(signed) "Xxxxx Xxxxx"
___________________________ --------------------------------
Witness Xxxxx Xxxxx
