FINANCIAL ADVISORY AGREEMENT
This Financial Advisory Agreement (the "Agreement") is made on this 10th day of
January, 2001, by and between Xxxxxx X. Xxxxx a sole proprietor with an office
located at 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx (the "Advisor") and Future
One, Inc., a Nevada corporation (the "Client").
In consideration of the mutual covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
1. SERVICES OF ADVISOR. Client engages Advisor to provide, and Advisor agrees to
provide executive consulting and financial advisory services on behalf of Client
as follows: Contacting sources such as broker/dealers, potential investors,
registered representatives, institutions, mutual fund managers, investment
banking sources, securities analysts, independent portfolio managers, and other
professional investment community contacts, for the purpose of meeting Client's
capital requirements. Advisor will also coordinate and assist in the filing and
preparing of the documents necessary for capital raising, by working with the
bankers, and other advisors of Client. Advisor will also assist the company in
obtaining strategic alliances and acquisitions, assist in the analysis of
company assets for dispositions or other financial transactions, and generally
assist the Chairman and CEO in the strategic direction of the Client.
2. COMPENSATION. In consideration of Advisor's services, Client will pay as
follows:
a. A seven percent (7%) completion fee in cash for equity capital raised
or the value of common stock in a merger for the Client. Such amounts
shall be payable when the Client receives cash proceeds from the
transaction.
b. If Advisor actively and materially participates in assisting Client in
obtaining financing in the form of loans, debt financing or sales of
major assets, the Advisor shall be compensated, in cash, an amount
equal to three percent (3%) of the total transaction value
consideration received by the Client from such transactions. Such
amounts shall be payable when the Client receives cash proceeds from
the transaction.
c. Client shall reimburse Advisor for direct out of pocket expenses
reasonably incurred in connection with this Agreement which have been
approved by the Client prior to incurring such expense.
3. INDEPENDENT CONTRACTOR. Advisor is an independent contractor in the making
and the performance of this Agreement and is not, and shall not, be construed to
be an employee, agent, partner or servant of Client. Advisor shall be liable for
all taxes of any kind levied on any income derived by Advisor under this
Agreement.
Advisor is acting only in a advisory capacity and not as an agent for Client.
Advisor shall have no authority to bind Client or to represent Client in any
capacity other than as expressly agreed to by Client. Advisor shall not make any
representations or disseminate any information about Client that is not
contained in public disclosures or expressly approved by Client.
4. TERM. This Agreement has a term of 12 months. Termination of Advisor by
Client shall still entitle Client to compensation as specified above for any
potential investors he has introduced for a period of 24 months from date of
termination or expiration of this Agreement.
5. TERMINATION. This Agreement may be terminated as follows:
a. EXPIRATION OF THIS AGREEMENT WITHOUT RENEWAL OR PENALTY. By expiration
of the term of this Agreement without renewal.
b. TOTAL DISABILITY OR DEATH. For the purpose of this Agreement, the term
"total disability" means Advisor's inability, because of serious
physical and/or mental injury, illness or impairment to namely Xxxxxx
X. Xxxxx or the death of Xxxxxx X. Xxxxx.
c. ADVISOR NOTICE. At the election of Advisor upon thirty (30) days
written notice to Client.
d. CLIENT NOTICE AND PENALTY. If at any time Client gives notice of
termination to Advisor without cause or as a decision to cease efforts
of Advisor on behalf of client for limited reasoning or at the opinion
of Advisor non-substantive rationale to cease the efforts of Advisor,
Client will pay a fee of $10,000 to Advisor.
e. WITH CAUSE. This Agreement may be terminated for cause at any time
upon five (5) days written notice. For the purpose of this Agreement
"for cause" is defined to include, but not be limited to the
following: intentional or unintentional acts by Advisor having the
effect or causing significant harm to the business interests of
Client; but to the extent that such acts are curable, Advisor shall
have five (5) business days following receipt of notice of said
material breach to cure such breach. Any notice to Advisor shall
specify the facts and circumstances claimed to provide the basis for
such termination.
6. OTHER CLIENTS. It is understood and agreed that this Agreement is a
non-exclusive agreement between Client and Advisor, and that nothing in
this Agreement shall prevent Advisor from providing services to any other
client in any industry. However Advisor agrees to devote such time and
effort to performing services for Client as are reasonable and necessary to
meet clients requirements.
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7. PROPRIETARY INFORMATION. Advisor shall treat as information proprietary to
Client any and all data and/or information discovered and/or disclosed and
shall not (directly or indirectly) use any such information and/or data for
their own benefit or disclose or fail to use its best efforts to prevent
the disclosure of the same to any other person or entity for any purpose or
reason whatsoever, during the term of this Agreement or at any time
thereafter.
8. PROPRIETARY INFORMATION DEFINED. Proprietary information includes but is
not limited to unique concepts, products, services, company/corporate
strategy and business development, including plans relating to this
acquisition, expansion, marketing, financials, client lists and other
business information, operating information, policies, practices and
processes, database and networking systems, information relating to
employees, customers, prospective customers and suppliers, whether such
information is documented, contained electronically and/or contained on any
other medium.
9. CONFIDENTIALITY. Advisor stipulates that he shall keep any and all
Proprietary Information obtained, during the term of this Agreement or any
time thereafter, in the strictest of confidence and secrecy.
10. NON-DISCLOSURE. Advisor stipulates that he shall not, during the term of
this Agreement or any time thereafter, in any way or by any means,
disclose, disseminate and /or distribute any Proprietary Information to any
third party without the prior express written consent of the Client.
11. NON-CIRCUMVENTION. Advisor stipulates that they shall not, during the term
of this Agreement or any time thereafter, in any way or by any means
implement and /or use any Proprietary Information, circumvent, usurp an
opportunity, take advantage of and/or benefit from, through the exclusion
of Client, any Proprietary Information obtained.
12. LIMITATION OF LIABILITY. To the extent permitted by law, neither Client or
Advisor, nor any of their officers, shareholders, employees, insurers,
attorneys, agents, permitted successors or assigns, shall be liable to each
other for any amount in excess of the fees paid hereunder. To the extent
permitted by law, in no event will Client or Advisor, their officers,
directors, shareholders, employees, insurers, attorneys, agents, permitted
successors or assigns, be held liable for any interruption or loss of
business, any loss of profit or any other special, consequential or
punitive damages, losses or expenses of any kind arising from the
performance of this Agreement, whether or not either party was notified of
the possibility of such damages.
13. INDEMNITY OF ADVISOR. The Client will defend, indemnify, save and hold
harmless Advisor from any and all claims, demands, liabilities, costs or
expenses including reasonable attorney's fees resulting from services
provided hereunder, including loss of business or profit. The Advisor will
not have the right to be indemnified for his own gross negligence or
willful misconduct.
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14. INDEMNITY OF CLIENT. The Advisor will defend, indemnify, save and hold
harmless Client from any and all claims, demands, liabilities, costs or
expenses including reasonable attorney's fees resulting from Advisors
services provided hereunder, including loss of business or profit. The
Client will not have the right to be indemnified for his own gross
negligence or willful misconduct.
15. NO BROKER-DEALER. Client is not a broker/dealer registered with the NASD or
any other regulatory agency. In performing services under this agreement,
the parties do not intend that Advisor will be acting in any broker/dealer
or underwriting capacity, or receiving any compensation from Client as
such. Advisor is acting in the capacity as a Financial Advisor and is not
responsible for the negotiation of the financial terms between the parties
or will not be responsible for the handling of any of the monies.
16. WAIVER. A Party's failure to insist on compliance or enforcement of any
provision of this Agreement shall not effect the validity or enforceability
or constitute a waiver of future enforcement of that provision or any other
provision of this Agreement by that Party or any other party.
17. LAW, JURISDICTION AND VENUE. This Agreement shall in all respects be
exclusively subject to, and governed by, the laws of the state of Colorado.
Exclusive venue and jurisdiction for any and all disputes shall lie in El
Paso County, Colorado. The Parties hereto stipulate that any dispute
arising out of this Agreement shall be submitted to binding arbitration in
Colorado pursuant to the arbitration rules and regulations, as codified in
the Colorado Revised Statutes.
18. VALIDITY. The invalidity or unenforceability of any provision in this
Agreement shall not in any way effect the validity or enforceability of any
other provision and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision had never been in this Agreement.
19. NOTICE. All notices and other communications provided for or permitted
hereunder shall be made by hand delivery, overnight courier, certified or
registered mail, postage prepaid and return receipt requested, telex or
facsimile transmission.
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If to Client If to Advisor
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0000 Xxxxxx Xxxx Xxxxxx Xxxxx #0000 0000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
All such notices shall be deemed to have been duly given:
when delivered, by hand if personally delivered; and
the next day, after being sent by overnight courier; and
when received, if by mail;
and when received (as electronically acknowledged), if by facsimile
transmission.
20. AMENDMENTS. This Agreement may be amended, at any time, only by the written
mutual consent of the Parties hereto, with any such Amendment to be invalid
unless it is both written and signed by both Parties.
21. LEGAL FEES AND COSTS. The Parties hereby stipulate and agree that in the
event that a dispute arises between the Parties, relating to this
Agreement, and one or both of the Parties deem it necessary to hire an
attorney to protect its rights and/or resolve said dispute, then the
prevailing Party, in any action, shall be entitled to recover and collect,
from the non-prevailing Party, all reasonable attorney's fees and costs
incurred.
22. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding by and between the Parties and no representations, promises,
agreements and/or understandings, written or oral, relating to this
Agreement by either Party not contained herein shall be of any force or
effect.
This Agreement is the exclusive Agreement between the parties with respect to
its subject matter and, as of its effective date, supersedes all prior and
contemporaneous agreements, negotiations, representations and proposals, written
or oral, related to its subject matter. The parties acknowledge that they have
read this Agreement and understand and agree to be bound by its terms and
conditions.
CLIENT ADVISOR
FutureOne, Inc Xxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx X. Xxxxx
-------------------------------- ----------------------------------
By: Xxxxxx Xxxxxxxx By: Xxxxxx X. Xxxxx
Its: President Its: Sole Proprietor
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