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Exhibit 1.3
CRUTTENDEN XXXX INCORPORATED
00 XXXXXXXXX XXXXX
XXXXXXX XXXXX, XXXXXXXXXX 00000
CONSULTING AGREEMENT
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______, 1999
XxxxxxxXxxx.xxx Incorporated
00 Xxxxxxxxxx Xxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
President
Dear Sirs:
This will confirm the arrangements, terms and conditions pursuant to
which Cruttenden Xxxx Incorporated (the "Consultant") has been retained to serve
as consultant and advisor to XxxxxxxXxxx.xxx Incorporated, a Delaware
corporation (the "Company"'), for the term set forth in Section 3 below. The
undersigned hereby agree to the following terms and conditions:
1. ENGAGEMENT. The Company hereby retains the Consultant to
perform consulting and advisory services, and the Consultant hereby accepts such
retention and agrees to do and perform consulting and advisory services, upon
the terms and conditions set forth herein.
2. DUTIES OF THE CONSULTANT.
(a) CONSULTING SERVICES. The Consultant will provide
such general financial consulting services and advice pertaining to the
Company's business affairs (as further set forth below), as and when the Company
may from time to time reasonably request upon reasonable notice. Without
limiting the generality of the foregoing, the Consultant will assist the Company
in developing, studying and evaluating financing and capital structure, mergers
and acquisitions activity and corporate financing proposals, prepare reports and
studies thereon when advisable, and assist in negotiations and discussions
pertaining thereto.
(b) FINANCING. The Consultant will assist and represent
the Company in obtaining both short and long-term financing, when so requested
by the Company in the Company's sole discretion. The Consultant will be entitled
to additional compensation under such terms as may be agreed to by the parties
in connection therewith.
(c) WALL STREET LIAISON. The Consultant will, when
appropriate, arrange meetings between representatives of the Company and
individuals and financial institutions in the investment community, such as
security analysts, portfolio managers and market makers.
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The services described in this Section 2 shall be rendered by the
Consultant in consultation with the Company at such time and place and in such
manner (whether by conference, telephone, letter or otherwise) as the Consultant
and the Company may reasonably determine.
3. TERM. The term of this Agreement shall commence on the date
hereof and continue for a period of two years from the date hereof (the "Term").
4. COMPENSATION. As compensation in full for the Consultant's
services hereunder during the Term, the Company shall pay to the Consultant the
sum of $517,500, of which $20,000 has been paid and the remainder of $497,500
shall be paid at the closing of the public offering contemplated by the
Underwriting Agreement, dated _______, 1999, between the Company and the
Consultant, as representative of the Underwriters identified therein.
5. EXPENSES. The Company shall pay and reimburse the
Consultant for all reasonable out-of-pocket expenses incurred by the Consultant
and approved in advance in writing by the Company in the performance of its
services under this Agreement.
6. RELATIONSHIP. Nothing herein shall constitute the
Consultant as an employee or agent of the Company. Except as might hereinafter
be expressly agreed, the Consultant shall not have the authority to obligate or
commit the Company in any manner whatsoever.
7. CONFIDENTIALITY. Except in the course of the performance of
its duties hereunder, and in such case, only upon express written consent of the
Company, the Consultant agrees that it shall not disclose any trade secrets,
know-how, or other proprietary information not in the public domain learned as a
result of this Agreement unless and until such information becomes generally
known or is in the public domain.
8. FINDER'S OR BROKER'S FEES. The Company acknowledges and
agrees that, with the written agreement and at the request of the Company, the
Consultant may act as a finder or financial consultant in various business
transactions in which the Company or any of its subsidiaries may be involved,
such as mergers, acquisitions, joint ventures or investments and that the
Consultant may be entitled to receive a finder's fee or brokerage commission or
other rights, profits or payments in connection with such transactions;
provided, however, that the Company and the Consultant have entered into an
agreement prior thereto regarding the services to be performed by and the fee to
be paid to the Consultant.
9. PERMITTED ACTIVITIES. Nothing contained in this Agreement
shall limit or restrict the right of the Consultant or of any officer, director,
shareholder, employee, agent or representative of the Consultant to be a
partner, owner, director, officer, employee, agent or representative of, or
engage in, any other business, whether of a similar nature or not, or limit or
restrict the right of the Consultant to render services of any kind to any other
corporation, firm, individual or other entity.
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10. ASSIGNMENT. This Agreement shall not be assignable by any
party except to a successor to all or substantially all of the business of
either party without the prior written consent of the other party, which consent
may be arbitrarily withheld by the party whose consent is required.
11. NOTICES. All notices hereunder shall be in writing and
shall be validly given, made or served if in writing and delivered in person or
when received by facsimile transmission, or five days after being sent first
class certified or registered mail, postage prepaid or one day after being sent
by nationally recognized overnight courier to the party for whom intended at the
addresses as set forth above or at such other address as may be provided.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION. This agreement
shall be interpreted, construed, governed and enforced according to the laws of
the State of California without giving effect to the conflicts of law rules
thereof. The Company and the Consultant hereby agree that any action, proceeding
or claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the State of California or of the
United States of America in California, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company and the
Consultant hereby irrevocably waive any objection to such exclusive jurisdiction
or inconvenient forum and also hereby irrevocably waive any right or claim to
trial by jury in connection with any such action, proceeding or claim.
13. AMENDMENTS. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and signed by the
parties hereto.
14. INDEMNIFICATION. As a consultant for the Company, the
Consultant must at times rely upon the information supplied to the Consultant by
the Company's officers, directors, agents and employees as to accuracy and
completeness. Therefore, the Company agrees to indemnify, hold harmless and
defend the Consultant, its directors, officers, employees and agents from and
against any and all claims, actions, proceedings, losses, liabilities, costs and
expenses (including without limitation, reasonable attorneys' fees) incurred by
any of them in connection with or as a result of any inaccuracy, incompleteness
or omission of information given to the Consultant in writing by the Company's
officers, directors, agents or employees in connection with the rendering of
services by the Consultant requested by the Company hereunder.
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15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts which, taken together, shall constitute one and the same
instrument, and this Agreement shall become effective when one or more
counterparts have been signed by each of the parties. It shall not be necessary
in making proof of this Agreement or any counterpart hereof to account for more
than one such counterpart.
Very truly yours,
CRUTTENDEN XXXX INCORPORATED
By:
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Name:
Title:
AGREED AND ACCEPTED:
XXXXXXXXXXX.XXX INCORPORATED
By:
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Xxxxxx X. Xxxxxxx
President
