EXHIBIT 10.2
ADVISORY AND CONSULTING AGREEMENT
THIS ADVISORY AND CONSULTING AGREEMENT ("Agreement") is made this 15th day
of February 2000, by and between Xxxxxxxx X. Small, an individual (referred to
herein as "Advisor") and NetCommerce Inc., a Nevada corporation (the "Company").
WHEREAS, Advisor has experience in investor and shareholder relations and
evaluating and effecting financing for public and privately-held companies; and
WHEREAS, the Company desires to retain Advisor to advise and assist the
Company in investor relations and financing the Company's activities, on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and Advisor
agree as follows:
1. Engagement
The Company hereby retains Advisor to act as director of investor relations
and financial advisor to the Company in connection with Investor Relations and
any proposed financing (the "Financing")of the Company. As part of the Investor
Relations and Financing, Advisor will assist the Company and its professional
advisors in the preparation of documentation, offering circular(s), explanatory
or disclosure statement(s), consent solicitation and investor relations
(collectively "Services")pursuant to any and all arrangements made through
Advisor. The Financing and Services are to be provided on a "best efforts"
basis.
In the course of providing the Services, Advisor will (a) become familiar
with, to the extent the Company deems appropriate, information to be provided by
the Company to enable Advisor to analyze the business, operations, properties,
financial condition, prospects and projects of the Company; (b) assist and
advise the Company in developing a general strategy for accomplishing the
Financing; (c) assist and advise the Company with regards to potential Financing
of the transaction; and, (d) render such other financial advisory services
including but not limited to investor and shareholder relations as may from time
to time be mutually agreed upon by the Company and Advisor.
2. Information on the Company
In connection with Advisor's activities hereunder, the Company will furnish
Advisor with all material and information regarding the business and financial
condition of the Company (all such information so furnished being referred to
herein as the "Information"). The Company recognizes and acknowledges that
Advisor (a) will use and rely solely on the Information, and on information
available from generally recognized public sources, in performing the Services
contemplated by this Agreement without having independently verified the same;
(b) does not assume responsibility for the accuracy or completeness of the
Information; (c) will not make an appraisal of any assets or liabilities of the
Company; and (d) retains the right to continue to conduct due diligence during
the term of this Agreement.
3. Use of Advice
Except as required by a court having jurisdiction over the Company, no
statements made or advice rendered by Advisor in connection with the Services
performed by the Advisor pursuant to this Agreement will be quoted by, nor will
any such statements or advice be referred to, in any report, document, release
or other communication, whether written or oral, prepared, issued or transmitted
by the Company or any person or corporation controlling, controlled by or under
common control with, the Company or any director, officer, employee, agent or
representative of any such person, without the prior written authorization of
Advisor, which may be given or withheld in his sole discretion, except that the
Company may disclose or refer to such advice or statements without being
required to obtain consent to the extent required by law (in which case the
appropriate party shall so advise Advisor in writing prior to such use and shall
consult with Advisor with respect to the form and timing of disclosure),
provided that the foregoing shall not prohibit appropriate internal
communication or reference with respect to such advice internally within such
parties and provided further that the Company shall be permitted to use the
information, after appropriate review by Advisor, to support its efforts to
effect the Services and Financing.
4. Term
Unless terminated earlier pursuant to paragraph 10 below, this Agreement
shall have an initial term of one (1) year (the "Primary Term"). At the
conclusion of the Primary Term this Agreement will automatically be extended on
an annual basis (the "Extension Period") unless Advisor or the Company shall
serve written notice on the other party terminating the Agreement. Any notice
to terminate given hereunder shall be in writing and shall be delivered at least
thirty (30) days prior to the end of the Primary Term or any subsequent
Extension Period.
5. Time and Effort of Advisor
Advisor shall allocate time as it deems necessary to provide the Services.
The particular amount of time may vary from day to day or week to week. Except
as otherwise agreed, Advisor's monthly statement identifying, in general, tasks
performed for the Company shall be conclusive evidence that the Services have
been performed. Additionally, in the absence of willful misfeasance, bad faith,
negligence or reckless disregard for the obligations or duties hereunder by
Advisor, Advisor shall not be liable to the Company or any of its shareholders
for any act or omission in the course of or connected with rendering the
Services, including but not limited to losses that may be sustained in any
corporate act involved in respect to any Financing undertaken by the Company as
a result of introductions or advice provided by Advisor.
6. Compensation
The Company agrees to pay Advisor a fee (the "Advisory Fee") for the
services provided by Advisor pursuant to this Agreement, as follows:
A. As to the Financing and Services to be rendered, the Company shall pay
Advisor an Advisory Fee of One Million Five Hundred Thousand (1,500,000) shares
of common stock of the Company to be registered and issued, upon execution of
this Agreement.
2
7. Place of Services
The Services provided by Advisor hereunder will be performed at Advisor's
offices except as otherwise mutually agreed by Advisor and the Company.
8. Independent Contractor
Advisor will act as an independent contractor in the performance of his
duties under this Agreement. Accordingly, Advisor will be responsible for
payment of all federal, state, and local taxes on compensation paid under this
Agreement, including income and social security taxes, unemployment insurance,
and any other taxes due, and any and all business license fees as may be
required. This Agreement neither expressly nor impliedly creates a relationship
---
of principal and agent, or employee and employer, between Advisor and the
Company. Advisor is not authorized to enter into any agreements on behalf of the
Company. The Company expressly retains the right to approve, in its sole
discretion, the Services and each Financing opportunity introduced by Advisor,
and to make all final decisions with respect to the Services to be rendered and
effecting a transaction on any Financing.
9. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship of
principal and agent between the Company and Advisor, or employee and employer as
between Advisor and the Company.
10. Termination
The Company and Advisor may terminate this Agreement prior to the
expiration of the Primary Term upon thirty (30) days written notice with mutual
written consent. Failing to have mutual consent, without prejudice to any other
remedy to which the terminating party may be entitled, if any, either party may
terminate this Agreement with thirty (30) days written notice under the
following conditions:
A. By the Company.
--------------
(i) In the event Advisor has not been provided by November 30, 2000 the
documentation necessary to allow the Company to effect the Financing,
acceptable to the Company; or,
(ii) If during the Primary Term of this Agreement or any Extension Period,
Advisor is unable to provide the services as set forth herein for thirty
(30) consecutive business days because of illness, accident, or other
incapacity; or,
(iii) If Advisor willfully breaches or neglects the duties required to be
performed hereunder.
B. By Advisor.
----------
(i) If the Company breaches this Agreement or fails to make any payments
or provide information required hereunder; or,
(ii) Other than in the Financing, if the Company ceases business, or sells
a
3
controlling interest to a third party, or agrees to a consolidation or
merger of itself with or into another corporation, or enters into such a
transaction outside of the scope of this Agreement, or sells substantially
all of its assets to another corporation, entity or individual outside of
the scope of this Agreement; or,
(iii) If the Company has a receiver appointed for its business or assets,
or otherwise becomes insolvent or unable to timely satisfy its obligations
in the ordinary course of business, including but not limited to the
obligation to pay the Advisory Fee; or,
(iv) If the Company institutes, makes a general assignment for the benefit
of creditors, has instituted against it any bankruptcy proceeding for
reorganization for rearrangement of its financial affairs, files a
petition in a court of bankruptcy, or is adjudicated bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by the
Company to Advisor are determined to be materially false or misleading.
In the event Advisor elects to terminate without cause or this Agreement is
terminated prior to the expiration of the Primary Term or any Extension Period
by mutual written agreement, or by the Company for the reasons set forth in A(i)
and (ii) above, the Company shall only be responsible to pay Advisor the
Advisory Fee accrued up to and including the effective date of termination. If
this Agreement is terminated by the Company for any other reason, or by Advisor
for reasons set forth in B(i) through (v) above, Advisor shall be entitled to
any outstanding unpaid portion of any unpaid Advisory Fee for the remainder of
the unexpired portion of the applicable term (Primary Term or Extension Period)
of the Agreement.
11. Remedies
Advisor and the Company acknowledge that in the event of a breach of this
Agreement by either party, money damages would be inadequate and the non-
breaching party would have no adequate remedy at law. Accordingly, in the event
of any controversy concerning the rights or obligations under this Agreement,
such rights or obligations shall be enforceable in a court of equity by a decree
of specific performance. Such remedy, however, shall be cumulative and non-
exclusive and shall be in addition to any other remedy to which the parties may
be entitled.
12. Miscellaneous
A. Subsequent Events. Advisor and the Company each agree to notify the other
-----------------
party if, subsequent to the date of this Agreement, either party incurs
obligations which could compromise its efforts and obligations under this
Agreement.
B. Amendment. This Agreement may be amended or modified at any time and in
---------
any manner only by an instrument in writing executed by the parties hereto.
C. Further Actions and Assurances. At any time and from time to time, each
------------------------------
party agrees, at its or their expense, to take actions and to execute and
deliver documents as may be reasonably necessary to effectuate the purposes of
this Agreement.
D. Waiver. Any failure of any party to this Agreement to comply with any of
------
its obligations, agreements, or conditions hereunder may be waived in writing by
the party to
4
whom such compliance is owed. The failure of any party to this Agreement to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision or a waiver of the right of such
party thereafter to enforce each and every such provision. No waiver of any
breach of or non-compliance with this Agreement shall be held to be a waiver of
any other or subsequent breach or non-compliance.
E. Assignment. Neither this Agreement nor any right created by it shall be
----------
assignable by either party without the prior written consent of the other.
F. Notices. Any notice or other communication required or permitted by this
-------
Agreement must be in writing and shall be deemed to be properly given when
delivered in person to an officer of the other party, when deposited in the
United States mails for transmittal by certified or registered mail, postage
prepaid, or when deposited with a public telegraph company for transmittal, or
when sent by facsimile transmission charges prepared, provided that the
communication is addressed:
(i) In the case of the Company:
NetCommerce Inc.
0000 Xxxx Xxxxxx Xxxxx Xxxx. Xxx. 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) In the case of Advisor:
Xxxxxxxx Xxxxx
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000, ext. 723
Facsimile: (000) 000-0000
or to such other person or address designated in writing by the Company or
Advisors to receive notice.
G. Headings. The section and subsection headings in this Agreement are
--------
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
H. Governing Law. This Agreement was negotiated and is being contracted for
-------------
in the United States, State of California, and shall be governed by the laws of
the State of California, and United States of America, notwithstanding any
conflict-of-law provision to the contrary.
I. Binding Effect. This Agreement shall be binding upon the parties hereto
--------------
and inure to the benefit of the parties, their respective heirs, administrators,
executors, successors, and assigns.
5
J. Entire Agreement. This Agreement contains the entire agreement between the
----------------
parties hereto and supersedes any and all prior agreements, arrangements, or
understandings between the parties relating to the subject matter of this
Agreement. No oral understandings, statements, promises, or inducements contrary
to the terms of this Agreement exist. No representations, warranties, covenants,
or conditions, express or implied, other than as set forth herein, have been
made by any party.
K. Severability. If any part of this Agreement is deemed to be unenforceable
------------
the balance of the Agreement shall remain in full force and effect.
L. Counterparts. A facsimile, telecopy, or other reproduction of this
------------
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument, by one or more parties hereto and such executed
copy may be delivered by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen. In this event, such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of any
party hereto, all parties agree to execute an original of this Agreement as well
as any facsimile, telecopy or other reproduction hereof.
M. Time is of the Essence. Time is of the essence of this Agreement and of
----------------------
each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
"Advisor"
By:
-----------------------------------------
Name: Xxxxxxxx Xxxxx
The "Company"
NetCommerce Inc.
By:
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
6
