CONSULTING AND ADVISORY AGREEMENT
This Consulting and Advisory Agreement ("Agreement") is made and
entered into effective this November 15, 2001, by and between KBK VENTURES INC,
("Consultant") a Texas Corporation, and WHIRLWIND MARKETING, INC. (the
"Company"), a Delaware Corporation.
Recitals
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A. Consultant is experienced as a consultant and advisor in the
securities industry. Consultant has played a key role in his
career in assisting in the dissemination of information of
certain publicly traded companies and providing the necessary
strategy for growth of the public awareness within the
companies where he has been employed. Consultant is also
experienced in dealing with brokers, NASD broker/dealers,
financial institutions, and equity investors as it pertains to
securities transactions and in corporate communications in the
securities industry.
B. Consultant is experienced at making presentations to the brokerage
community in addition to providing market analysis and NASD
broker/dealer interviews concerning the current activities of the
companies with which he has been contracted as an advisor.
C. Whirlwind Marketing, Inc. desires to publicize itself with the
intention of making its name and business better known to
shareholders, investors, and brokerage community. Whirlwind
Marketing, Inc. desires to enter in to this Agreement with
Consultant; and Consultant is willing to provide consulting
and advisory services to the Company under the terms and
conditions of this Agreement.
D. Consultant agrees to perform its consulting duties hereto as
an independent contractor. Nothing contained herein shall be
considered as creating an employer-employee relationship
between the parties to this Agreement. The Company shall not
make Social Security, Worker's Compensation or Unemployment
Insurance payments on behalf of Consultant. The parties hereto
acknowledge and agree that Consultant cannot guarantee the
results of effectiveness of any of the services rendered or to
be rendered by Consultant hereunder. Rather, Consultant shall
conduct its operations and provide its services in a
professions manner and in accordance with good industry
practice. Consultant will use its best efforts and does not
promise results.
NOW THEREFORE, for and in consideration of 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 hereby
agree as follows:
1. Engagement. The Company hereby retains Consultant to publicize the
Company to institutions, brokers, research analysis, prospective
investors, and shareholders. Consultant hereby agrees to make himself
available to render his professional advice and reasonable assistance
to the Company and the Company's President and/or Chief Executive
Officer under the terms and conditions hereinafter set forth.
2. Duties. During the term of this Agreement, Consultant agrees
to assist and advise the Company upon the Company's reasonable
requests in the following general areas:
a) assistance in the dissemination of information concerning
the Company to publicize itself
b) interviewing and sourcing qualified NASD brokers located
in the United States;
c) assistance in the presentation of due diligence materials
included in investment memorandums and another similar matters
may be required by industry partners, bankers, financial
institutions, NASD brokers, research analysts, and equity
investors; and
d) a program of communication with brokerage professions
including institutional investors and brokers that have an
interest in securities; such other general assistance and
advice that may be mutually agreed upon.
3. Compensation. The compensation to Consultant for entering into
this Agreement and for the services rendered hereunder shall
be in the form of (i) a onetime retainer payment of $15,000
(fifteen thousand dollars) thereby, engaging Consultant. The
retainer may be paid with a Company check or by delivering
free-trading shares of said value (ii) payment by the Company
of $5,000(five thousand dollars) per month as a consulting
serves fee beginning December 15, 2001, and continuing monthly
thereafter through and including December 15, 2002, and (iii)
the issuance by the Company of Rule 144 stock for an aggregate
amount of $120,000 (one hundred and twenty thousand dollars)
shares of the Company's common stock, symbol: (OTC BB:WLWD)
for the benefit of Consultant. The consulting services fee
must be paid by the Company within 10(ten) days of receipt of invoice.
The Company shall also promptly reimburse Consultant for all the
reasonable and necessary expenses incurred by Consultant in the
performance of the services described and contemplated hereunder,
including, without limitation, travel expenses, lodging, meals,
entertainment, and office, delivery/mailings, and telephone expenses.
The first month's payment of the consulting services fee (Dec 2001)
will be pro-rated 50% or $2500, as the month begins on the 15th. The last
month's payment of the consulting services fee (Dec 2002) will also be pro-rated
50% or $2500, as the month concludes on the 15th.
The 120,000(one hundred twenty thousand) shares of Rule 144 stock as
described above shall be issued and delivered to Consultant, in full, no later
than November 27, 2001. Consultant shall not be required to commence duties
until the Rule 144 shares are delivered to Consultant.
Twenty five percent (25%) or 30,000 (thirty thousand) shares of Rule
144 stock will come with "piggy-back registration rights" to be included in the
next Registration Statement undertaken by the Company. Consultant shall have the
right to "Piggy-back" on any registration or offering by the Company without
cost or expenses to Consultant. The piggy-back shares thereupon shall be
unrestricted as to transferability and the Certificates shall not bear any
legends, restrictions, or encumbrances whatsoever. The remaining 75% or 90,000
(ninety thousand) shares of Rule 144 stock will be included in subsequent
Registrations of Offerings undertake by the Company.
If the common shares to be issued shall change into the same of a
different number of shares of any other class or classes of stock (whether by
capital reorganization, reclassification, stock split, reverse stock split or
otherwise), Consultant shall be entitled to, instead of common shares, a number
of shares of such other class of classes of stock adjusted to the number of
shares Consultant would have received had Consultant received the shares
immediately before such change was made.
The parties acknowledge that the recent trading volume is not a fair
indication of value for this transaction and the restriction of such shares
pursuant to Rule 144 requires a time differential. It is hereby agreed that the
Exchange value of the stock for this transaction, based on the number of shares
and recent trading volume, and the time restriction, is discounted by fifty
percent(50%) of the closing bid price for the shares on the date
this Agreement is signed.
4. Term. This Agreement shall be for a term of twelve (12) months
unless sooner terminated as provided in Paragraph 5 below.
5. Termination. This Agreement shall terminate;
a) if there has been a material breach of this Agreement and such
breach has not been cured by the alleged breaching party on or
before thirty(30) days from the date of the receipt of a
written notice from the non-breaching party detailing the
breaching party detailing the breach;
b) at the end of twelve(12) months from the effective date
of this Agreement;
c) resignation by Consultant upon sixty(60) days written
notice;
d) death or disability of Consultant to such an extent that
he cannot perform the duties outlined in this Agreement;
or,
It is expressly understood by the parties hereto that any earned but unpaid
compensation due to Consultant (as outlined in Section 3 herein) prior to the
effective date of the termination of this Agreement, shall inure to the benefit
of Consultant, his heirs, representatives, successors or assigns, and shall be
binding upon the Company and its successors and assigns.
If the contract is terminated by Company for cause or should this
Agreement be terminated by Consultant or Company without cause, then the
Agreement shall be of no further force and effect, and Consultant will return to
Company unearned Rule 144 shares using the following formula:
12+11+10+9+8+7+6+5+4+3+2+1=78 For example after 3 months contract is terminated.
12+11+10=33; 33/78=42% earned; 58% will be returned.
6. Accuracy of Information and Indemnification. The Company
agrees to furnish to Consultant truthful and accurate
information in all respects. The Company agrees to cooperate
with Consultant in the performance of Consultant's consulting
services. The Company will have final approval of all
brochures or marketing material disseminated by Consultant.
In connection with this engagement and in addition to any other rights
available under common law or otherwise, the Company agrees to
indemnify and hold harmless Consultant and its affiliates, agents, and
employees, and each other person, if any, controlling Consultant or any
of its affiliated (collectively,"Indemnified Persona"), from and
against, and the Company agrees that no Indemnified Person shall have
any liability to the Company or its owners, parents, affiliates,
security holders or creditors for, any losses, claims, damages, or
liabilities (including actions or proceedings respect
thereof)(collectively "Losses") (A) related to or arising out of (i)the
Company's actions or failures to act (including from untrue statements
made or omissions of information provided, by the Company or its agents
included in any materials disseminated by Consultant on behalf of the
Company) or (ii) actions or failures to act by an Indemnified Person
with the Company's consent or an reliance on the Company's actions or
failures to act, or (B) otherwise related to or arising out of this
engagement or Consultant's performance hereunder, except that this
clause (C) shall not apply to any Losses that are finally judicially
determined to have resulted primarily from the bad faith or gross
negligence of the Indemnified person. If such indemnification is for
any reason not available or insufficient to hld the Indemnified Person
harmless, the Company agrees to contribute to the Losses involved in
such proportion as is appropriate to reflect the relative benefits
received (or anticipated to be received) by the Company and by
Consultant with respect to the engagement or, if such allocation is
judicially determined unavailable, in such proportion as is appropriate
to reflect other equitable considerations such as the relative fault of
the Company on the one hand and of Consultant on the other hand;
provided, however, that to the extent permitted by applicable law, the
Indemnified Persons shall not be responsible for amounts which in the
aggregate are in excess of the amount of all fees actually received by
Consultant from the Company in connection with this engagement.
The Company shall reimburse each Indemnified Person for all expenses
(including without limitation reasonable fees and disbursements of counsel and
expenses incurred in connection with preparing for an responding to third party
subpoenas) as they are incurred by such Indemnified Person in connection with
investigating, preparing for or defending any action, claim, investigation,
inquiry, arbitration, or other proceeding ("Action") referred to above (or
enforcing this agreement or any related engagement agreement), whether of not in
connection with pending or threatened litigation in which any Indemnified Person
is a party, and or not such Action is initiated or brought by Consultant. The
Company further agrees that it will not settle or compromise or consent to the
entry of any judgment in any pending or threatened Action in respect of which
indemnification may be sought hereunder (whether or not an Indemnified Person is
a party therein) unless the Company had given reasonable prior written notice
thereof and used all reasonable efforts, after consultation with Consultant, to
obtain an unconditional release of each Indemnified Person from all liability
arising therefrom.
7. Miscellaneous.
a) Assignment Unless otherwise agreed to in writing by both
parties hereto, the rights, obligations and benefits
established by this Agreement are not, and shall not be,
assignable by either of the parties hereto, and any such
attempt of assignment shall be null and void and of no effect
whatsoever.
b) Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof, and
may not be changed except by a writing signed by the party
against whom enforcement or discharge is sought.
c) Waiver of Breach. The waiver by either party of a breach of
any provisions of this Agreement by the other party shall not
operate of be construed as a waiver of any subsequent breach
by the other party.
d) Construction of Language. The language used in this Agreement
shall be construed as a whole according to its fair meaning,
and strictly for nor against either party.
e) Captions and headings. The paragraph headings throughout this
Agreement are for convenience and referenced only, and shall
in no way be deemed to define, limit, or add to the meaning of
any provisions of this Agreement.
f) State Law. This agreements, its interpretation, and its
application shall be governed by the laws of the State of
Texas, and the parties agree that venue shall be in the
federal and state district courts of Xxxxxx County,
Texas.
g) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, and such
counterparts shall together constitute one and the same
instrument.
h) Costs. In the event of any legal proceeding between any of the
parties to enforce or defend the terms and rights set forth in
this Agreement, the prevailing party or parties shall be paid
all costs of such legal proceeding, including but not limited
to reasonable and necessary attorney's fees and court costs,
by the other party or parties.
i) Notices and Waivers. Any notice or waiver required or
permitted to be given by the parties hereto shall be in
writing and shall be deemed to have been given, when
delivered, three (3) business days after being mailed by
certified or registered mail, faxed during regular business
hours of the recipient and there is confirmation of receipt,
or sent by prepaid full rate telegram to the following
address:
To Consultant: Mr. Xxxxx Xxxxxxxx
KBK Ventures, Inc.
0000 X. Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
To the Company: Xx. Xxxxxxx Xxxxxxx
Whirlwind Marketing, Inc.
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
j) Binding Agreement. This Agreement shall bind and inure to the
benefit of Consultant and the Company and their respective
heirs, representatives, successors and assigns.
k) Option. The Company may choose to extend this one (1) year
Agreement for an additional year with the approval, consent
and renegotiation of Consultant.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as
of the day and year first above written notwithstanding the actual date of
signatures.
KBK Ventures, Inc.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, President
Whirlwind Marketing, Inc.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, CEO
