ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (this "Agreement"), is made and entered into as
of the 1st day of May 2000 by and between XxxxxXxxxxxxx.xxx, Inc., a Delaware
corporation (the "Client"), and Financial Service Group, LLC, a Utah limited
liability company (the "Advisor").
In consideration of the mutual promises and agreements herein contained and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. ADVISORY SERVICES
The Advisor undertakes to act as an advisor to the Client and shall,
subject to the supervision of the Client (the "Client"), provide financial and
investment advisory services to the Client which shall include, but not be
limited to, (i) reviewing and analyzing all material documentation (legal,
financial or otherwise) of the Client to determine the Client's most effective
internal organizational financial structure for the purpose of financing, (ii)
determining the Client's best course of action, which may include (a) private
placements of common or preferred stock, or debt, for the expansion of its
working capital, acquisition financing or the restructuring of existing
indebtedness, (b) mergers and acquisitions, (c) initial public offerings, and
(d) any other transactions deemed by the Advisor to be in the best interests of
the Client.
Consistent with its duties described in the paragraph above, the
Advisor shall use its best efforts to provide advice on equity or debt financing
of a minimum of $500,000 and a maximum of $20,000,000 through the end of
calendar year 2000. The Client shall cooperate with the Advisor in structuring
one or more transactions to manage these sums on such commercially reasonable
terms as may be acceptable to the Client. Such proceeds shall be used by the
Client for such purposes as the Client deems appropriate. If the Client requests
the Advisor to participate in any other transactions or perform any other
specific services, such services shall be described in an addendum hereto, in a
form to be agreed upon by the parties.
The Advisor may, in its discretion and at its own expense, or with
client's prior approval if at client's expense, appoint one or more sub-advisors
to perform one or more of the foregoing services with respect to all or a
portion of the investments of the Client. The Advisor shall also have full
authority and discretion as to all matters that are necessary or incidental to
the foregoing. Upon the request of the Client, the Advisor shall furnish the
Client with full information concerning activities undertaken by the Advisor for
the Client.
2. ADVISORY FEE
For services to be rendered hereunder to the Client, the Client will
pay to the Advisor advisory fees as follows: $10,000 per month, as of May 1,
2000, in the form of cash and /or equity as a management fee. The cash portion
shall be $8,000 per month, and the equity portion shall be paid in the form of
warrants to purchase shares of Client's Common Stock at a rate to be determined
by the Board of Directors of the Client under the Client's 2000 Stock Option
Plan, as amended. The Client shall pay these fees to the advisor on the first of
each month in the case of the cash portion and once every quarter in the case of
the equity portion. If the Client and the Advisor agree on additional services,
the services and fees thereon shall be agreed to in writing by the parties.
3. EXPENSES
It is understood that if agreed to in advance, the Client will pay, or
reimburse the Advisor for, all expenses incurred by Advisor in connection with
its services provided hereunder, including but not limited to, reasonable travel
expenses, including those associated with investigating any potential
investments in the Client or maximizing return on existing investments of the
Client. The Advisor acknowledges that if no agreement with the Client regarding
reimbursement of certain expenses is made prior to any such expenses being
incurred, the Client shall have no obligation to reimburse Advisor for such
expenses.
4. SERVICES TO OTHER COMPANIES
The services of the Advisor hereunder are not to be deemed exclusive,
the Advisor being free to render services to others and engage in other
activities; provided, however, that such other services and activities do not,
during the term of this Agreement, interfere in a material manner with the
Advisor's ability to meet all of its obligations with respect to rendering
services to the Client hereunder.
5. STANDARD OF CARE
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the
Advisor, the Advisor shall not be subject to liability to the Client or to any
director, shareholder, employee or agent thereof for any act or omission in the
course of, or connected with, rendering services hereunder.
6. TERM OF AGREEMENT; AMENDMENTS
(a) This Agreement shall commence as of the date hereof and, subject to
prior termination as provided in section 6(b) hereof, shall continue in force
until December 31, 2000 and thereafter shall be renewed automatically on a
month-to-month basis, unless terminated by either party by written notice no
later than thirty (30) days prior to the expiration of the then-current term.
(b) Either party hereto may, at any time on thirty (30) days prior
written notice to the other, terminate this Agreement, without payment of any
penalty.
(c) This Agreement may he modified only by the mutual consent of the
parties evidenced in writing.
7. ADVISOR BEST EFFORTS; COMPANY INDEMNITY
Advisor shall use its best efforts in the performance of the investment
advisory and management services to be performed hereunder. All recommendations
and instructions made by the Advisor will be based upon information received
from the Client and from sources that the Advisor believes to be reliable, but
whose accuracy is not and cannot be guaranteed. Such information may or may not
have been independently verified by the Advisor. The Client agrees to indemnify
Advisor and hold him harmless from and against any liability of any nature
resulting from the Client furnishing information that is false or inaccurate.
8. NOTICES
Except as otherwise specifically provided herein, all notices or
communications provided for herein shall be in writing, delivered in person, by
overnight mail or by facsimile followed by a hard copy sent first class mail
postage pre-paid, and addressed as follows, or to such other address or
addresses as may be designated by either party by written notice to the other:
If to Client: XxxxxXxxxxxxx.xxx, Inc
Attn: Xxxxxx X. Xxxxxxxxx
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Advisor: Financial Service Group, LLC
Attn: Michaeljohn Kudlik
0000 X. 000 Xxxx, Xxx. 00
Xxxx Xxxx Xxxx, XX 00000
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9. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the State of Utah, without reference to its choice of law
principles.
10. ARBITRATION
All disputes between the parties arising out of or relating to this
Agreement shall be submitted to and settled by arbitration as hereinafter
provided. Any arbitration proceeding shall be by a single arbitrator experienced
in the matters at issue who is selected by the parties involved in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitration proceeding shall be held in such place in the Salt Lake City
metropolitan area as may be selected by the arbitrator (or any other place
agreed to by the parties involved and the arbitrator). The decision of the
arbitrator shall be final and binding as to any matters submitted to him/her
under this Agreement; provided, however, that if necessary, such decision and
satisfaction procedure may be enforced by either the Company or Advisor, as the
case may be, in any United States District Court having jurisdiction over this
matter. The determination of which party (or combination thereof) bears the
costs and expenses incurred in connection with any such arbitration proceeding
shall be determined by the arbitrator.
11. ILLEGALITY; UNENFORCEABILITY
If any provision of this Agreement is found to be illegal or
unenforceable, all other provisions to this Agreement will remain in full force
and effect.
12. AUTHORIZED SIGNATORIES
Each of the individuals signing below hereby represents and warrants
that he is a duly authorized signatory of the entity bearing his signature
below, that he is authorized and empowered to enter into this Agreement and to
effect the transactions contemplated hereby on behalf of such entity, and that
this Agreement is the legal and valid binding obligation of the entity bearing
his signature below, and enforceable against such entity in accordance with its
terms, except as they may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to creditors' rights generally, and general
principles of equity.
IN WITNESS WHEREOF, the parties have caused this instrument to be
signed on their behalf by their respective officers there unto duly authorized
all as of the date first written above.
XXXXXXXXXXXXX.XXX, INC. FINANCIAL SERVICE GROUP. LLC
("Client") ("Advisor")
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Michaeljohn Kudlik
--------------------------- --------------------------
Its: Chairman & CEO Its: Vice President
(By resolution of the Board
of Directors)
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