ADVISOR'S AGREEMENT
This Agreement is made and entered into effective as of January 31,
2005 (the "Effective Date"), by and between FinancialContent, Inc., a Delaware
corporation ("Company") and Xxx Xxxxxx, an individual, ("Advisor").
THE COMPANY AND ADVISOR AGREE AS FOLLOWS:
1. Retention of Advisor/ Performance of Services. Company hereby retains Advisor
to provide the services described on Exhibit A (the "Services"), and Advisor
hereby agrees to use his best efforts to provide the Services, in accordance
with Exhibit A. Advisor shall not allow any other person or entity to perform
any of the Services for or instead of Advisor.
2. Compensation. In exchange for Company's retention of Advisor, the Company
agrees to grant to Advisor 600,000 shares of the Company's Form S-8 registered
common stock.
3. Expenses. Company will reimburse all reasonable expenses incurred by Advisor
in performing Services, if pre-approved in writing by the Company.
4. Term. The term of this Agreement shall be for three (3) years beginning on
the Effective Date and ending, unless sooner terminated, on January 31, 2008.
5. Publicity. Except as required by law, the Company shall not make any public
announcement or other disclosure regarding Advisor's position with the Company
except with the prior written consent of the Advisor, which consent Advisor
shall not unreasonably withhold. If any disclosure is required by law, the
Company shall consult Advisor concerning the form of announcement prior to such
disclosure being made.
6. Removal by Directors. At any time, Advisor may be removed by the Board of
Directors ("Directors") of the Company at a regular or special meeting, or upon
the unanimous consent of the Directors without a meeting. This Agreement shall
terminate automatically upon any such vote by the Board.
7. Conflicting Obligations. Advisor has no outstanding agreement or obligation,
and will not enter into any agreement or obligation, that is in conflict with
any of the provisions of this Agreement or that would preclude Advisor from
fully complying with all of Advisor's obligations under this Agreement. Advisor
shall not serve on the Board of Directors or the Board of Advisors of any
company or entity which competes indirectly or directly with Company, as
determined in the sole discretion of the Chairman of the Board of Directors of
the Company.
8. Confidentiality. Advisor shall not, during the term of this Agreement,
improperly use or disclose any proprietary or confidential information or trade
secrets of the Company to any third party. Advisor shall, within 10 days
following the execution of this Agreement, execute the Company's standard
Non-Disclosure Agreement.
9. Indemnity Agreement. The Company shall indemnify Advisor against any and all
expenses, judgments, fines, penalties, settlements and other amounts actually
and reasonably incurred by him in connection with any proceeding if, with
respect to the acts or omissions of Advisors which are the subject of the
proceeding, Advisor acted in good faith and in a manner he reasonably believed
to be in the best interest of the Company. No determination in any proceeding
against Advisor by judgment, order, or settlement (with or without court
approval), shall, of itself, create a presumption that Advisor did not act in
good faith and in a manner which he reasonably believed to be in the best
interests of the Company.
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The Company shall indemnify Advisor against any and all expenses, judgments,
fines, penalties, settlements and other amounts actually and reasonably incurred
by him in connection with the defense or settlement of a derivative proceeding
if, with respect to the acts or omissions of Advisor which are the subject to
the proceeding, Advisor acted in good faith and in a manner which he believed to
be in the best interest of the Company and its shareholders;
Advisor shall, as a condition precedent to his right to be indemnified under
this Agreement, give the Company notice in writing as soon as practicable of the
commencement of the threatened commencement of any Proceeding against him or her
for which indemnification will or could be sought under this Agreement.
Both the Company and Advisor acknowledge that in certain instances state of
federal law or applicable public policy may prohibit the Company from
indemnifying Advisor under this Agreement or otherwise.
The Company shall not be obligated pursuant to this indemnity clause to
indemnify Advisor for expenses and the payment of profits arising from the
purchase and sale by Advisor of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor statute or
similar provisions of any state or federal securities law.
10. General Provisions
10.1 Further Assurances. Each party shall perform any and all
further acts and execute and deliver any documents which are reasonably
necessary to carry out the intent of this Agreement.
10.2 Notices. All notices or other communications required or
permitted by this Agreement or by law shall be in writing and shall be deemed
duly served and given when delivered personally or by facsimile, air courier,
certified mail (return receipt requested), postage and fees prepaid, to the
party at the address indicated in the signature block or at such other address
as a party may request in writing.
10.3 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by binding
arbitration administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
10.4 Governing Law, Jurisdiction, and Venue. This Agreement shall
be governed and interpreted in accordance with the laws of the State of
California, as such laws are applied to agreements between residents of
California to be performed entirely within the State of California. Subject to
the immediately preceding paragraph, each party hereby consents to jurisdiction
of and venue in the federal district court for the Northern District of
California, San Francisco Division, and/or in the courts of the State of
California for San Mateo County.
10.5 Entire Agreement/ Modification. This Agreement sets forth the
entire agreement between the parties pertaining to the subject matter hereof and
supersedes all prior written agreements, and all prior or contemporaneous oral
agreements and understandings, express or implied. No modification to this
Agreement, nor any waiver of any rights, shall be effective unless assented to
in writing by the party to be charged, and the waiver of any breach or default
shall not constitute a waiver of any other right or any subsequent breach or
default.
10.6 Assignment. The rights contained in this Agreement are of a
unique character and may not be assigned in whole or in part by either party
without the prior written consent of the other party; provided, however, that
Company shall be entitled to assign this Agreement to a successor to all or
substantially all of its assets, whether by sale, merger, or otherwise.
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10.7 Severability. If any of the provisions of this Agreement are
determined to be invalid or unenforceable, the remaining provisions shall be
deemed severable and shall continue in full force and effect to the extent the
economic benefits conferred upon the parties by this Agreement remain
substantially unimpaired.
10.8 Attorneys' Fees. Should any litigation be commenced between
the parties concerning the rights or obligations of the parties under this
Agreement, the party prevailing in such litigation shall be entitled, in
addition to such other relief as may be granted, to a reasonable sum as and for
its attorneys' fees in such litigation. This amount shall be determined by the
court in such litigation or in a separate action brought for that purpose. In
addition to any amount received as attorneys' fees, the prevailing party also
shall be entitled to receive from the party held to be liable, an amount equal
to the attorneys' fees and costs incurred in enforcing any judgment against such
party. This Section is severable from the other provisions of this Agreement and
survives any judgment and is not deemed merged into any judgment.
10.9 Construction. The headings of this Agreement are for
convenience only and are not to be considered in construing this Agreement. The
language of this Agreement shall be construed according to its fair meaning and
not strictly for or against any party.
10.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Authorization. The undersigned represents and warrants that he
is authorized to enter into this Agreement on behalf of the Company.
12. Board Approval. The terms and conditions of this Agreement
shall not be enforceable against the Company unless and until approved by the
Company's board of directors.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement effective as of the date first written above.
FinancialContent, Inc. Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxx Xxxx., Xxxxx 000 5 Country Lane
So. San Francisco, CA 94080 Xxxxxx, XX 00000
Telephone: (000) 000.0000 Telephone:
Facsimile: (000) 000.0000 Facsimile:
Dated: Dated:
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Advisor
Chief Executive Officer
FinancialContent, Inc.
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EXHIBIT A
DESCRIPTION OF SERVICES
Responsibilities As Advisor. These responsibilities shall include, but shall not
be limited to, the following:
1. Advisor agrees to meet regularly with the employees and officers of
the Company.
2. Advisor shall use his best efforts to attend quarterly scheduled
meetings of the Board of Advisors and with the Company's Officers;
3. Advisor shall use his best efforts to attend monthly scheduled
conference calls for Company updates;
4. Advisor shall make himself available on a reasonable basis by email
to the CEO and Chairman for strategic feedback;
5. Advisor shall make himself available on a reasonable basis to offer
advice and counsel to CEO and Chairman in the areas of leadership,
organization and communication; and
6. Advisor shall make client and partner introductions.
