EXHIBIT 10b ADVISORY AGREEMENT
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement") is made this 14th day of May
2002, by and between Xxxx X. Xxxx, doing business as MediaOne a California sole
proprietorship ("Advisor") and Senior Care Industries, Inc., a Nevada
corporation (the "Company").
WHEREAS, Advisor and Advisor's Personnel (as defined below) have
experience in evaluating and effecting mergers and acquisitions, supervising
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 the date hereof and
continuing until termination, as provided herein, to assist the Company in it's
effecting the purchase of businesses and assets relative to its business and
growth strategy (the "Services"). The Services are to be provided on a "best
efforts" basis directly and through others employed or retained and under the
direction of Advisor ("Advisor's Personnel"); provided, however, that the
Services shall expressly exclude all legal advice, 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 ninety (90) days (the
"Primary Term"). At the conclusion of the Primary Term this Agreement will
automatically be extended on a month to month 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.
3. Time and Effort of Advisor
Advisor shall allocate time and Advisor's 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), on behalf of the Company,
or financing transaction where the Company provides capital for an interest or
rights to a particular Business Opportunity, or any financial restructuring
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 (the "Initial
Fee") by way of the issuance by the Company of One Million (1,000,000) shares of
the Company's common stock (the "Fee Shares").
Additionally, if the Company subsequent to the date hereof enters into a merger
or purchases the asset(s) or enters into a joint venture with, or makes an
investment in a company (a "Business Opportunity") introduced by Advisor, the
Company agrees to pay a fee equal to five percent (5%) (the "Business
Opportunity Fee") of the value of each Business Opportunity introduced by
Advisor, which shall be payable upon the closing date of each sale of such
Business Opportunity in cash or in shares of the Company's common stock on the
same basis as the Fee Shares. The Business Opportunity Fee, when payable, will
be less any amounts already received by Advisor from the Initial Fee, stated
above.
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5. Registration of Shares
No later than ten (10) days following the date hereof as to the Fee Shares the
Company will cause such shares to be registered with the Securities and Exchange
Commission under a Form S-8 or other applicable registration statement, and it
shall cause such registration statement to be remain effective at all times
while Advisor holds such shares. At Advisor's election, such shares may be
issued prior to registration in reliance on exemptions from registration
provided by Section 4(2) of the Securities Act of 1933 (the "'33 Act"),
Regulation D of the '33 Act, and applicable state securities laws. Such issuance
or reservation of shares shall be in reliance on representations and warranties
of Advisor set forth herein. Failing to register such shares, or maintain the
effectiveness of the applicable registration statement, the Company shall
satisfy any Compensation in cash within ten (10) days of receipt of Advisor's
statement setting out the amount of compensation then due and payable.
6. Costs and Expenses
All third party and out-of-pocket expenses of Five Hundred Dollars ($500.00) or
more, incurred by Advisor in the performance of the Services shall be approved
in advance by the Company and shall be paid from the Initial Fee paid by
Advisor.
7. 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.
8. 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 Business Opportunity introduced by Advisor, and to
make all final decisions with respect to effecting a transaction on any Business
Opportunity.
9. Rejected 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 Business
Opportunity identified and/or selected by Advisor, notwithstanding the time and
expense the Company may have incurred reviewing such transaction, such Business
Opportunity shall re-vest back to and become proprietary to Advisor, and Advisor
shall be entitled to acquire or broker the sale or investment in such rejected
Business Opportunity for its own account, or submit such assets 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 Business Opportunity, or the Company's subsequent purchase or
financing with such Business Opportunity in circumvention of Advisor.
10. 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.
11. 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) 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,
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(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, 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 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 Compensation; 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 a 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 for the
Compensation 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 the balance of the Compensation for the remainder
of the unexpired portion of the applicable term (Primary Term or Extension
Period) of the Agreement.
12. 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 a breach of any representation, warranty, covenant, condition, or
agreement of the other party to this Agreement.
13. 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.
14. 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 a 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 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.
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(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:
Senior Care Industries, Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
(ii) In the case of Advisor:
Xxxx X. Xxxx
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
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
the United States, State of Nevada, and shall be governed by the laws of the
State of Nevada, 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.
(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date above
written.
"Advisor"
Xxxx X. Xxxx
By: s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
The "Company"
Senior Care Industries, Inc.
By: s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx Xxxxxx, Xx.
Title: CEO
