Exhibit 10.12
Form 10-KSB
Ozolutions Inc.
File No. 000-31343
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (the "Agreement") is made this 5th
day of June 2001 by and between Xxxxx Xxxxxxx LLC a Utah limited
Company ("Advisor") and Ozolutions, Inc. a Delaware corporation
with its offices located in Xxxxxxx, Xxxxxxx, Xxxxxx (the
"Company").
WHEREAS, Advisor and Advisor's Personnel (as defined below)
have experience in evaluating and effecting mergers and
acquisitions, advising corporate management, and in performing
general administrative duties for publicly-held companies and
development stage investment ventures; and
WHEREAS, the Company desires to retain Advisor to advise and
assist the Company in its development 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, effective as of the date
hereof (the "Effective Date") and continuing until
termination, as provided herein, to assist the Company in
it's effecting the purchase of business and assets relative
to its business and growth strategy, acquisition of other
operations or business, general business and financial
issues consulting, the introduction of the Company to public
relations firms and consultants and others that may assist
the Company in its plans and future (the "Services"). The
Services are to be provided on a "best efforts" basis
directly and through Advisor's officers or others employed
or retained and under the direction of Advisor (" Advisor's
Personnel"); provided, however, that the Service shall
expressly exclude all legal advise, accounting services or
other services which require licenses or certification which
advisor may not have.
2. Term
This Agreement shall have an initial term of twelve (12)
months (the "Primary Term"),commencing with the Effective
Date. 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.
3. Time and Effort of Advisor
Advisor shall allocate time and Advisors Personnel 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, neither
Advisor nor Advisor's Personnel shall 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 in any subsequent Business Opportunity (as
defined herein) undertaken by the Company as a result of
advice provided by Advisor or Advisor's personnel.
4. Compensation
The Company agrees to pay Advisor a fee for the services
("Advisory Fee") by way of the delivery by the company of
Nine Hundred Fifty Thousand (950,000) restricted shares of
the common stock of the Company, as an initial fee, these
shares shall be delivered within seven (7) days after the
execution hereof. All shares transferred are considered
fully earned and non-assessable as of the date hereof.
5. Other Services
If the Company enters into a merger or exchanges securities
with, or purchases the assets or enters into a joint venture
with, or makes an investment in a company introduced by
Advisor (an Asset or Business Opportunity"), the Company
agrees to pay Advisor a fee equal to ten percent (10%) of
the value of each Business Opportunity introduced by Advisor
and acquired or otherwise participated in by the Company
(collectively referred to herein, in each instance, as the
"Transaction Fee"), which shall be payable immediately
following the closing of each such transaction, in
restricted shares of the Company's common stock or in kind
if an acquisition is made at the Company's option, if paid
in cash the Transaction Fee shall be reduced to five percent
(5%)
6. Registration of Shares
Company agrees that any shares issued to satisfy a Fee
hereunder may be registered by the Company with the
Securities and Exchange Commission under any subsequent
applicable registration statement filed by the Company at
the Company's discretion. Such issuance or reservation of
shares shall be in reliance on representations and
warranties of Advisor set forth herein.
7. Costs and Expenses
All third party and out-of-pocket expenses incurred by
Advisor in the performance of the Services or for the
settlement of debts shall be paid by the Company, or Advisor
shall be
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reimbursed if paid by Advisor on behalf of the
Company, within (10) days of receipt of written notice by
Advisor, provided that the Company must approve in advance
all such expenses in excess of $500 per month.
8. Place of Services
The Services provided by Advisor or Advisor's Personnel
hereunder will be performed at Advisor's offices except as
otherwise mutually agreed by Advisor and the Company.
9. Independent Contractor
Advisor and Advisor's Personnel will act as an independent
contractor in the performance of its 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 relative to Advisor's Personnel, 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's Personnel and the Company. Neither Advisor nor
Advisor's Personnel are authorized to enter into any
agreements on behalf of the Company. The Company expressly
retains the right to approve, in its sole discretion, each
Asset Opportunity or Business Opportunity introduced by
Advisor, and to make all final decision, each Asset
Opportunity introduced by Advisor, and to make all final
decisions with respect to effecting a transaction on any
Business Opportunity.
10. Rejected Asset Opportunity or Business Opportunity
If, during the Primary Term of this Agreement or any
Extension Period, the Company elects not to proceed to
acquire, participate or invest in any Asset or Business
Opportunity identified and/or selected by Advisor,
notwithstanding the time and expense the Company may have
incurred reviewing such transaction, such Asset or Business
Opportunity shall revert back to and become proprietary to
Advisor, and Advisor shall be entitled to acquire or broker
the sale or investment in such rejected Asset or Business
Opportunity for its own account, or submit such Asset or
Business Opportunity elsewhere. In such event, Advisor
shall be entitled to any and all profits or fees resulting
from Advisor's purchase, referral or placement of any such
rejected Asset or Business Opportunity, or the Company's
subsequent purchase or financing with such Asset or Business
Opportunity in circumvention of Advisor
11. 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's
Personnel and the Company.
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12. 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 terminate this Agreement
with thirty (30) days written notice under the following
conditions:
(A) By the Company.
(i) 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 of Advisor's Personnel; or,
(ii) If Advisor willfully breaches or neglects the
duties required to be performed hereunder; or,
(iii) At Company's option without cause upon 30
days written notice to Advisor; or
(B) By Advisor
(i) If the Company breaches this Agreement or fails to
make any payments or provide information required
hereunder; or,
(ii) If the Company ceases business or, other than in
an Initial Merger, sells a 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 subsequent to the execution
hereof 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, including but not limited to the
obligation to pay the Initial Fee, the Transaction fee,
or the Advisory Fee; or,
(iv) If the Company subsequent to the execution hereof
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 a
bankrupt; or,
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(v) If any of the disclosures made herein or
subsequent hereto by the Company to
Consultant 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 for unreimbursed expenses, Advisory Fee and
Transaction 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 reimbursable expenses,
Transaction Fee, if any, and for the remainder of the
unexpired portion of the applicable term (Primary Term or
Extention Period) of the Agreement.
13. Indemnification
Subject to the provisions herein, the Company and Advisor
agree to indemnify, defend and hold each other harmless from
and against all demands, claims, actions, losses, damages,
liabilities, costs and expenses, including without
limitation, interest, penalties and attorneys' fees and
expenses asserted against or imposed or incurred by either
party by reason of or resulting from any action or breach of
any representation, warranty, covenant, condition, or
agreement of the other party to this Agreement.
14. 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 nonexclusive
and shall be in addition to any other remedy to which the
parties may be entitled.
15. 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, each party agrees, at its or their expense, to take
actions and to execute and deliver documents as may be
reasonably neccssary to effectuate the purposes of this
Agreement.
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(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 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 of the right of such
party thereafter to enforce each and every such provision.
No waiver of any breach of or noncompliance with this
Agreement shall be held to be a waiver of any other or
subsequent breach or noncompliance.
(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 and 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: Ozolutions, Inc.
00 Xxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telephone: (000) 000-0000
Telefax: ( )
Attention: Max Weissengruber,
President
(ii) In the case of Advisor: Xxxxx Xxxxxxx LLC
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attention: Xxxxx Xxxxxxx,
Managing Member
Or to such other person or address designated in writing by
the Company or Advisor 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 Utah, and shall be governed by
the laws of the State of Utah, and the United States of
America, not withstanding any conflict-of-law provision to the
contrary.
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(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.
(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 or similar instantaneous electronic transmission
devise pursuant to which the signatures 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 os 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 this date above written.
The "Company" "Advisor"
Ozolutions, Inc. Xxxxx Xxxxxxx LLC
A Delaware Corporation A Utah Limited
Liability Co.
By /s/ Max Weisengruber By: /s/ Xxxxx Xxxxxxx
Name: Max Weisengruber Name: Xxxxx Xxxxxxx
Title: President Title: Managing Member
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