EXHIBIT 10.7
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BUSINESS ADVISORY & FINANCIAL CONSULTING SERVICES AGREEMENT
This Business Advisory and Financial Consulting Services Agreement (the
"Agreement"), entered into and effective as of the 21st day of April, 2003 by
and between ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter referred to as, "Consultant"), and Doblique, Inc., a Nevada
corporation (hereinafter referred to as, "Client") (collectively referred to
herein as the "Parties").
Preliminary Statement: The Client desires to be assured of the association and
services of the Consultant in order to avail itself of the Consultant's
experience, skills, abilities, knowledge, and background to facilitate long
range strategic planning, and to advise the Client in business and/or financial
and merger/acquisition matters and is therefore willing to engage Consultant
upon the terms and conditions set forth herein. Consultant desires to be
assured, and Client desires to assure Consultant, that, if Consultant associates
with Client and allocates its resources necessary to provide Client with its
business advisory and consulting services, Consultant will be paid the
consideration described herein and said consideration will be nonrefundable,
regardless of the circumstances.
Consultant agrees to be engaged and retained by Client upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Engagement. Client hereby engages Consultant on a non-exclusive basis, and
Consultant hereby accepts the engagement to become a business and
financial Consultant to Client and to render such advice, consultation,
information, and services to the Directors and/or Officers of Client
regarding general financial and business matters including, but not
limited to the following:
1.1 Advice and Counsel. Consultant will provide advice and counsel regarding
Client's strategic business plans, strategy and negotiations with
potential business strategic partnering, corporate planning and or other
general business consulting needs as expressed by Client.
Consultant will review and assess various financing strategies and
solutions with Client. Consultant will help Client determine
desirable financing amounts, terms, and structure. Consultant will
assist Client in determining Client's proper capital structure. The
services which are contemplated under this Agreement shall not
relate in any way to the offer or sale of securities in any
capital-raising transaction and shall not directly or indirectly
promote or maintain a market for the Client's securities. None of
the services contemplated under this Agreement shall relate in any
way to the raising of capital, promotion of the Client's securities
or investor relations.
Consultant will provide general advice and counsel to Client
regarding mergers and acquisitions. At Client's request, Consultant
is available to be materially involved in negotiating acquisition
terms and structure, and assisting with due diligence and
documentation.
Consultant will assist Client in the development and/or refinement
of the strategic growth plan for the next 24 months and related
communications materials.
Consultant will assist Client with corporate governance structure
involving Client's Board of Directors and committees. Consultant
will also assist with the development and implementation of
management and director compensation programs.
1.2 Client and/or Client's Affiliate Transaction Due Diligence. Consultant
will participate and assist Client in the due diligence process, where
possible, on all proposed financial transactions affecting Client of which
Consultant is notified in writing in advance, including conducting
investigation of and providing advice on the financial, valuation and
stock price implications of the proposed transaction(s).
1.3 Mergers and Acquisitions. Consultant will provide assistance to Client, as
mutually agreed, in introducing and/or assisting Client in identifying,
acquiring, merging, and/or divesting on a non-exclusive basis, from time
to time, as Consultant deems appropriate in its sole discretion, assisting
in due-diligence, recommending transaction terms and providing advice and
assistance during negotiations, as needed. It is expressly understood that
Consultant shall have no power to bind Client to any contract or
transaction obligation.
Consultant will introduce and/or assist the Client with one or more
parties who might be interested in (whether by way of merger,
consolidation, asset purchase, technology license, or substantially
similar transaction) either, (a) acquiring some or all of Client's assets
or, (b) selling some or all of their own assets to Client and/or, (c)
entering into some form of strategic alliance with Client. Specifically,
Consultant is available to assist Client with the review of target company
financials and due diligence, and with the proposed valuation and
structure of acquisitions. At Client's request, Consultant will act as
Client's agent and sponsor in negotiations with acquisition targets,
demonstrating to target companies that Client has the support of
Consultant as Client pursues growth and development plans and strategies.
Consultant is also available to assist Client with the documentation of
transactions, including letters of intent, definitive agreements, and
other closing documents.
1.4 Additional Duties. Client and Consultant shall mutually agree, in writing,
for any additional duties that Consultant may provide to Client for
compensation paid or payable by Client under this Agreement. Although
there is no requirement to do so, such additional agreement(s) may be
attached hereto and made a part hereof by written amendments to be listed
as "Exhibits" beginning with "Exhibit A" and initialed by both parties.
2. Compensation to Consultant.
2.1 Engagement Fee. As express consideration for Consultant entering into this
Agreement, Client shall issue an aggregate of 1,500,000 shares of its
common stock, par value $.001 per share (the "Engagement Fee"). When
issued, said shares shall be restricted shares, although at the earliest
availability, Client shall register such shares with the U.S. Securities
and Exchange Commission (the "SEC") on a Form S-8 or a similar
registration statement. Such shares shall be issued and delivered to
Consultant within ten days of the effective date of this Agreement.
2.2 Expenses. Client shall reimburse Consultant for reasonable expenses
incurred in performing its duties pursuant to this Agreement (including
printing, postage, express mail, photo reproduction, travel, lodging, and
long distance telephone and facsimile charges); provided, however, that
for any expenses over $500, Consultant must receive prior written approval
from Client. Such reimbursement shall be payable within seven days of
Consultant's invoice.
2.3 Additional Fees. Client and Consultant shall mutually agree upon any
additional fees that Client may pay in the future for services rendered by
Consultant under this Agreement. Such additional agreement(s) may,
although there is no requirement to do so, be attached hereto and made a
part hereof as Exhibits beginning with Exhibit A.
3. Indemnification. The Client agrees to indemnify and hold harmless
Consultant against any and all liability, loss and costs, expenses or
damages, including but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever or howsoever
caused by reason of any injury (whether to body, property, personal or
business character or reputation) sustained by any person or to any person
or property, arising out of any act, failure to act, neglect, any untrue
or alleged untrue statement of a material fact or failure to state a
material fact which thereby makes a statement false or misleading, or any
breach of any material representation, warranty or covenant by Client or
any of its agents, employees, or other representatives. Nothing herein is
intended to nor shall it relieve either party from liability for its own
willful act, omission or negligence. All remedies provided by law, or in
equity shall be cumulative and not in the alternative.
4. Confidentiality.
4.1 Consultant and Client each agree to keep confidential and provide
reasonable security measures to keep confidential information where
release may be detrimental to their respective business interests.
Consultant and Client shall each require their employees, agents,
affiliates, other licensees, and others who will have access to the
information through Consultant and Client respectively, to first enter
appropriate non-disclosure Agreements requiring the confidentiality
contemplated by this Agreement in perpetuity.
4.2 Consultant will not, either during its engagement by the Client pursuant
to this Agreement or at any time thereafter, disclose, use or make known
for its or another's benefit any confidential information, knowledge, or
data of the Client or any of its affiliates in any way acquired or used by
Consultant during its engagement by the Client. Confidential information,
knowledge or data of the Client and its affiliates shall not include any
information that is, or becomes generally available to the public other
than as a result of a disclosure by Consultant or its representatives. In
addition, Consultant shall not perform similar services provided for
herein to any person identified by Client as a competitor of the Client.
5. Miscellaneous Provisions.
5.1 Amendment and Modification. This Agreement may be amended, modified and
supplemented only by written agreement of Consultant and Client.
5.2 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The obligations of either
party hereunder cannot be assigned without the express written consent of
the other party.
5.3 Governing Law; Venue. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
laws of the State of Florida, without regard to its conflict of law
doctrine. Client and Consultant agree that if any action is instituted to
enforce or interpret any provision of this Agreement, the jurisdiction and
venue shall be the City of Miami, Dade County, Florida.
5.4 Attorneys' Fees and Costs. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs, in addition to any other
relief to which that party may be entitled. This provision shall be
construed as applicable to the entire Agreement.
5.5 Survivability. If any part of this Agreement is found, or deemed by a
court of competent jurisdiction, to be invalid or unenforceable, that part
shall be severable from the remainder of the Agreement.
5.6 Facsimile Signatures. The Parties hereto agree that this Agreement may be
executed by facsimile signatures and such signature shall be deemed
originals. The Parties further agree that within ten (10) days following
the execution of this Agreement, they shall exchange original signature
pages.
6. Arbitration. All disputes, controversies, or differences between client,
consultant, or any of their officers, directors, legal representatives,
attorneys, accountants, agents or employees, or any customer or other
person or entity, arising out of, in connection with or as a result of
this agreement, shall be resolved through arbitration rather than through
litigation. With respect to the arbitration of any dispute, the
undersigned hereby acknowledge and agree that:
A. Arbitration is final and binding on the parties;
B. The parties waive their right to seek remedy in court, including
their right to jury trial;
C. Pre-arbitration discovery is generally more limited and different
from court proceeding;
D. The arbitrator's award is not required to include factual findings
or legal reasoning and any party's right of appeal or to seek
modification of ruling by the arbitrators is strictly limited;
E. This arbitration provision is specifically intended to include any
and all statutory claims which might be asserted by any party;
F. Each party hereby agrees to submit the dispute for resolution to the
American Arbitration Association in Dade County, Florida within five
(5) days after receiving a written request to do so from the other
party;
G. If either party fails to submit the dispute to arbitration on
request, then the requesting party may commence an arbitration
proceeding, but is under no obligation to do so;
H. Any hearing scheduled after an arbitration is initialed shall take
place in the City of Miami, Dade County, Florida;
I. If either party shall institute a court proceeding in an effort to
resist arbitration and be unsuccessful in resisting arbitration or
shall unsuccessfully contest the jurisdiction of any arbitration
forum located in the City of Miami, Dade County, Florida, over any
matter which is the subject of this agreement, the prevailing party
shall be entitled to recover from the losing party its legal fees
and any out-of-pocket expenses incurred in connection with the
defense of such legal proceeding or its efforts to enforce its
rights to arbitration as provided for herein;
J. The parties shall accept the decision of any award as being final
and conclusive and agree to abide thereby;
K. Any decision may be filed with any court as a basis for judgment and
execution for collection.
7. Term/Termination. This Agreement is an agreement for the term of twenty
four (24) months ending April 30, 2005 and is effective as of the date
first written above. Client may terminate this Agreement at any time
resulting in a full cancellation of this Agreement and any future
obligation of payment by Client or performance by Consultant.
Notwithstanding the foregoing, it is expressly agreed by Client that any
compensation or shares previously tendered to the Affiliates or Consultant
shall not be refundable.
8. Representations, Warrants and Covenants. The Client represents, warrants
and covenants to the Consultant as follows:
The Client has the full authority, right, power and legal capacity to
enter into this Agreement and to consummate the transactions which are
provided for herein. The execution of this Agreement by the Client and its
delivery to the Consultant, and the consummation by it of the transactions
which are contemplated herein have been duly approved and authorized by
all necessary action by the Client's Board of Directors and no further
authorization shall be necessary on the part of the Client for the
performance and consummation by the Client of the transactions which are
contemplated by this Agreement.
The business and operations of the Client have been and are being
conducted in all material respects in accordance with all applicable laws,
rules and regulations of all authorities which affect the Client or its
properties, assets, businesses or prospects. The performance of this
Agreement shall not result in any breach of, or constitute a default
under, or result in the imposition of any lien or encumbrance upon any
property of the Client or cause acceleration under any arrangement,
agreement or other instrument to which the Client is a party or by which
any of its assets are bound. The Client has performed in all respects all
of its obligations which are, as of the date of this Agreement, required
to be performed by it pursuant to the terms of any such agreement,
contract or commitment.
9. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CLIENT: CONSULTANT:
Doblique, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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