Exhibit 10.2
------------
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This Agreement is made and entered into as of this 17th day of March,
1999 by XXXXXXXXXX.XXX, a Florida corporation ("TMAN" OR "COMPANY"), and
VistaQuest, Inc., a New York corporation, ("CONSULTANT").
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. PURPOSE. The Company hereby retains the Consultant during the term
specified in Section 2 hereof to render consulting advice to the Company as
relating to financial and similar matters, upon the terms and conditions set
forth in this agreement.
2. TERM. The term of this Agreement (the "TERM") shall be the period
beginning the date of this Agreement and ending twelve (12) months thereafter.
If at any time after five months from the date of the signing of this Agreement,
the Company or the Consultant, for valid reasons, wish to terminate this
Agreement, notice of termination after an additional thirty (30) days shall be
sent to the Company or to the Consultant by certified or registered mail,
postage prepaid. If to the Company addressed to it at: 0000 Xxxxxxxxx Xxxxxxx
Xxxxx - Xxxx. 00X, Xxxxxxx, XX 00000 Attention: Xxxx Xxxxxxxxxxx, CEO; if to the
Consultant at: VistaQuest, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxxx Xxxxxxx, President, with a copy to Xxxxxx Xxxxxx
III, 000-Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000 or to
such address as hereafter may be designated in writing by any of such entities
to the others. Such notice for termination and/or other communication shall be
deemed to be given on the day of receipt; and thirty (30) days, thereafter, such
Agreement shall thereupon cease to be in effect. Termination prior to twelve
(12) months from the beginning date of this Agreement shall not affect terms of
the warrant for 180,000 shares, as stated in Section 6. The Consultant shall
provide information to inquiries from the professional financial community for a
period of one and one-half years after termination of this Agreement.
3. SERVICES OF CONSULTANT. During the Term of this Agreement, the
Consultant will provide the Company with such regular and customary consulting
advice as is reasonably requested by the Company, provided that the Consultant
shall not be required to undertake duties not reasonably within the scope of the
consulting advisory services contemplated by this Agreement. In the performance
of these duties, the Consultant shall provide the Company with the benefits of
its best judgment and efforts. It is understood and acknowledged by the parties
that the value of the Consultant's advice is not measurable in any quantitative
manner, and that the Consultant shall be obligated to render advice, upon the
request of the Company, in good faith, but shall not be obligated to spend any
specific amount of time in doing so. The Consultant's duties may include, but
will not necessarily be limited to:
(a) Rendering advice and assistance in connection with the
dissemination of corporate information regarding the Company to
the investment community;
(b) Rendering advice and assistance in connection with the preparation
of annual and interim reports and press releases;
(c) Arranging meetings with securities analysts and others in the
securities business for the Company at appropriate times;
(d) Assisting in the Company's financial public relations, including
discussions between the Company and the financial community;
(e) Rendering advice with respect to internal operations, including
advice regarding:
(i) the formation of corporate goals and their implementation;
(ii) the financial structure, programs, and projects of the
Company;
(iii) corporate organization and personnel;
(f) Rendering advice with respect to any acquisition program of the
Company;
4. RELATIONSHIPS WITH OTHERS. The Company acknowledges that the
Consultant and its affiliates are in the business of providing financial
services and consulting advice (of all types contemplated by this Agreement) to
others. Nothing herein contained shall be construed to limit or restrict to the
Consultant or its affiliates from rendering such services or advice to others as
long as they're not in direct competition with the Company (specifically in the
business of providing Internet services that deal with martial arts, kickboxing,
or extreme sports).
5. CONSULTANT LIABILITY. In the absence of gross negligence or willful
misconduct on the part of the Consultant, the Consultant shall not be liable to
the Company, or to any officer, director, employee, stockholder or creditor of
the Company, for any act or omission in the course of or in connection with the
rendering or providing of advice or services hereunder. Except in those cases
where the gross negligence or misconduct of the Consultant is alleged and proven
in a judicial proceeding, the Company agrees to defend, indemnify and hold the
Consultant harmless from and against any and all costs and expenses, and any
liability (including, but not limited to, attorney's fees paid in the defense of
the Consultant) which may in any way result from services rendered by the
Consultant pursuant to or in any connection with this Agreement.
6. COMPENSATION. As promptly as possible after the execution of this
Agreement, the Company will deliver to the Consultant a Warrant (the "Warrant")
for the purchase of up to one hundred eight thousand (180,000) shares (the
"Warrant shares") of the company's common stock which shall be registered under
the Securities Act of 1933, as amended representing up to 180,000 free-trading
shares (the "WARRANT SHARES") of the Company's common stock. The Warrant shall
provide for a cashless exercise, i.e., the Warrant shall provide that in lieu of
paying the exercise price in cash, the Consultant may at his option surrender
the Warrant for the cancellation of that number of Warrant Shares (the "CANCELED
WARRANT Shares"). The purchase price for the Exercised Warrant Shares shall thus
be paid with the corresponding Canceled Warrant Shares and, to the extent that
the aggregate exercise price of the Exercised Warrant Shares exceeds the
aggregate Premium of the Canceled Warrant Shares, such difference shall be paid
in cash. For purposes of this Section 6, the "Premium" of a Warrant Share is the
amount by which the market price of the Warrant Share exceeds its exercise
price. The Warrant may be exercised in whole or in part at any time, and from
time to time, commencing on or after March 17, 1999 until 5 PM New York time,
March 17, 2002 (whereupon the Warrant shall expire and be of no further force or
effect). The Warrant shall be exercised at a price of $3.00.
The exercise price shall be subject to adjustment, to protect
the Consultant against dilution, as set forth in appropriate anti-dilution
provisions in the Warrant. The Warrant shall also provide that stock
certificates for any shares purchased by the Consultant under the Warrant shall
be delivered to the Consultant no later than 10 business days after the receipt
of payment of the exercise price by the Company.
6.1 (a) If any time during the period commencing on the
date hereof, the Company proposes to file a
registration statement to register shares of its
common stock under the Act for sale to the public in
an underwritten offering, it will at each such time
promptly given written notice to the Consultant of
its intention to do so and, upon the written request
of the Consultant made within 15 calendar days after
the receipt of any such notice (which request must
specify the number of shares of registrable stock
which the Consultant intends to dispose of, and must
state the intended method of disposition thereof),
the Company will effect the registration under the
Act of the shares as and when requested by the
Consultant. The registration rights of the Consultant
shall be subject to reduction or elimination if so
required by the Company's managing underwriter;
provided, that if such offering also registers shares
for other selling shareholders, then the larger, of
(i) fifty percent or (ii) pro-rata with the largest
percentage of holdings of selling shareholders, of
the Consultant's Warrant Shares shall be included in
the registration. Absent a registration by the
company in the first six (6) months beginning the
date of this Agreement, the Consultant shall have
demand registration rights as provided in the Warrant
Agreement of March, 1999 herewith between the
Consultant and the Company.
2
(b) The costs and expenses (other than underwriting
discounts and commissions) of all registrations and
qualifications under the Act and of all other actions
the Company is required to take or effect in
connection with the registration rights described
herein, shall be paid by the Company (including,
without limitation, all registration and filing fees,
printing expenses, fees and expenses of complying
with the Blue Sky laws of the State of New York, and
fees and disbursements of counsel for the Company and
of the Company's independent public accounts).
7. LIMITATION UPON THE USE OF ADVICE AND SERVICES. No person or entity
other than the Company shall be entitled to make use of or rely upon the advice
of the Consultant to be given hereunder, and the Company shall not transmit such
advice to others, or encourage or facilitate the use or reliance upon such
advice by others, without the prior written consent of the Consultant.
7.1 It is clearly understood that the Consultant, for
services rendered under this Agreement, makes no
commitment whatsoever to recommend or advise its
clients to purchase the securities of the Company.
Research reports that may be prepared by the
Consultant, when and if prepared, will be based
solely on the independent judgment or analysis of the
Consultant or senior corporate finance personnel of
the Consultant.
7.2 The use of the Consultant's name in any annual report
or other report of the company, or any release or
similar document prepared by or on behalf of the
Company, must have the prior written approval of the
Consultant unless the Company is required by law to
include the Consultant's name in such annual report,
other report or release, in which event the
Consultant will be furnished with a copy of such
annual report, other report or release using the
Consultant's name in advance of publication by or on
behalf of the Company.
7.3 The Consultant shall not disclose or use for its own
or the benefit of any other person confidential
information which it learns about the Company as a
result of its engagement hereunder, except for such
disclosure as may be required for Consultant to
perform its duties hereunder, as is agreed to in
writing by the parties, or as is ordered by a Court
having jurisdiction with respect to this Agreement.
8. SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful for any reason
whatsoever, such unlawfulness or invalidity shall not affect the validity of the
remainder of this Agreement.
9. MISCELLANEOUS. All notices and/or other communications shall be sent
to the Company or to the Consultant by certified or registered mail, postage
prepaid. If to the company, addressed to it at: 1000 Universal Studios Plaza -
Bldg. 22, Xxxxxxx, XX 00000 Attention: Xxxx Xxxxxxxxxxx, CEO; if to the
Consultant at: VistaQuest, Inc. 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxxx Xxxxxxx, President, - with a copy sent to Xxxxxx
Xxxxxx III, 000-Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000 or
to such address as hereafter may be designated in writing by any of such
entities to the others. Such notice and/or other communication shall be deemed
to be given on the day of receipt.
9.1 At the end of the Term, the provisions of this
Agreement relating to the duties of the Consultant
and compensation by the Company as it applies to such
Consultant shall cease to be in effect, except for
those rights and obligations that by their nature are
intended to survive the termination of this
Agreement, including but not limited to the Company's
obligations of payment for services rendered prior
thereto and the provisions set fourth in Section 6
above. This Agreement shall survive any merger of the
Company or sale of substantially all of its assets
and this Agreement shall be binding on the surviving
Company after any such merger and upon both the
Company and the acquiring company after any such
3
sale. This Agreement embodies the entire agreement
and understanding between the company and the
Consultant and supersedes any and all negotiations,
prior discussions and preliminary and prior
agreements and understandings related to the subject
matter hereof effective March 17, 1999.
9.2 This Agreement has been duly authorized, executed and
delivered by and on behalf of the Company and the
Consultant.
9.3 This Agreement shall be construed and interpreted in
accordance with the laws of the States of New York
and Florida, without giving effect to conflicts of
laws in each of those states. Each party hereby
consents that the venue for jurisdiction in any
action arising out of this Agreement, will be
determined at that time by the party initiating the
action, and each party further agrees that the
service of process or of any papers upon it by
registered mail at their respective addresses set
forth herein shall be deemed good, proper and
effective service upon it.
9.4 The headings in the Sections of this Agreement are
inserted for convenience of reference only and shall
not affect or be deemed to affect the meaning of any
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereunto have executed this
Agreement as of the date first above written.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: CEO
VISTAQUEST, INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: President
4
