CONSULTING AGREEMENT
Consulting Agreement dated as of December 21, 2004 by and between
Advanced Global Industries Corporation, a corporation organized and existing
under the laws of Nevada with offices at 000 X. Xxxxxxxx Xxxxxx, #000,
Xxxxxxxxxx, XX 00000 (the "Company") and G.M. Capital Partners, Ltd. a B.V.I.
company with offices at Xxxxxxxxxxxxx00 XXX 0000 XX-0000 Xxxxxx Xxxxxxxxxxx (the
"Consultant").
W I T N E S S E T H:
The Company desires to engage the services of the Consultant for
purposes of general corporate counseling and advice and more specifically for
those services set forth on Schedules A and B hereto (collectively, the
"Consulting Services").
Consultant is desirous of performing the Consulting Services on behalf
of the Company and desires to be engaged and retained by the Company for such
purposes.
ACCORDINGLY, in consideration of the recitals, promises and conditions
in this Agreement, the Consultant and the Company agree as follows:
1. CONSULTING SERVICES. The Company hereby retains the Consultant, and
the Consultant accepts such retention all on the terms and conditions herein
contained.
2. TERM.
(a) This Agreement shall become effective on the execution date hereof
and, unless previously terminated, shall continue in effect for a term
of 12 months from the date of this Agreement. This Agreement shall be
terminable by the Company at its sole discretion on or after December
31, 2005 (the "Expiration Date"). The period from the date hereof until
the Expiration Date is hereafter referred to as the "Term."
(b) Notwithstanding paragraph 2(a), either party may terminate this
Agreement, upon 5 days prior written notice, as follows:
(i) upon the failure of the other party to cure a material
default under, or a breach of, this Agreement (including, but not
limited to, the Company's obligations under Section 5 hereof) within 5
days after written notice is given as to such breach by the terminating
party;
(ii) upon the bankruptcy or liquidation of the other party,
whether voluntary or involuntary;
(iii) upon the other party taking the benefit of any
insolvency law; and/or
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(iv) upon the other party having a receiver appointed or
applying for a receiver for all or a substantial part of such party's
assets or business.
(d) Termination of this Agreement will not affect the right (i) of the
Consultant to be paid (a) any fees enumerated in Section 3 hereof,
additional fees enumerated in any of the Schedules hereto, and/or any
reimbursable expenses incurred in connection with the Consulting
Services, which are payable or have been earned as of the effective
date of such termination or (b), any additional fees, enumerated in any
of the Schedules hereto, earned and payable after the effective date of
the termination of this Agreement or (ii), of any Indemnified Person to
receive indemnification pursuant to the provisions set forth in
Sections 6 and 7 of the Agreement. The Company will pay any such fees,
additional fees and/or reimbursable expenses, earned and payable on or
prior to the effective date of the termination of this Agreement, no
later than the effective date of the termination of this Agreement. Any
additional fees earned after the termination of this Agreement are
payable in accordance with the provisions of the particular Schedule
hereto relating to the payment of such additional fees.
3. FEES. In addition to and not in mitigation of, or substitution for,
the additional fees enumerated in any of the Schedules hereto, the Company shall
pay and deliver to the Consultant:
(a) a success fee as per the attached Schedule B
(b) issue to Consultant a unit purchase option consisting of one share
and one warrant on the same terms as are on similar units sold to
investors in the contemplated raising of equity (the "Unit") to
purchase five percent (5%) of Units issued on the closing of the
financing in conjunction with the merger between Advanced Global and
Synova Healthcare at an exercise price per Unit equal to the price
at which the Unit was sold on such closing.
(c) On each date on which any warrants are exercised by any investors
of the Units and cash is received by the Company, a commission equal
to one percent (1%) of the gross purchase price for the securities
shall be paid to Consultant.
4. EXPENSES. The Company will reimburse the Consultant for its
expenses, including any due diligence, legal and accounting expenses, reasonably
incurred by the Consultant, in execution of the Consulting Services on behalf of
the Company. Expenses, if any, shall be paid monthly in arrears and the first
payment shall be made on January 1, 2005. The expenses shall be paid until the
termination of this Agreement and all outstanding expenses (including any
unbilled expenses) shall be paid on the date of the termination of this
Agreement or as soon thereafter as practical with respect to unbilled expenses.
Notwithstanding anything in this Agreement to the contrary, the Consultant may
require the Company to pay, and the Company at the direction of the Consultant
will pay, any expenses that alone or in the aggregate may exceed US$250 directly
in advance. Notwithstanding any other provision of this Agreement, the
Consultant shall not make any single expenditure that exceeds US$500 without the
prior written consent of the Company.
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5. DUTIES OF THE COMPANY.
(a) The Company shall supply the Consultant, on a regular and timely
basis, with all data and information about the Company, its management, its
products and its operations as the Company deems material or which the
Consultant reasonably requires, and the Company shall be responsible for
advising the Consultant of any facts which would affect the accuracy of any
prior data and information previously supplied to the Consultant so that the
Consultant may take corrective action.
(b) The Company shall promptly supply the Consultant with full and
complete copies of all filings with all federal and state securities agencies;
full and complete copies of all stockholder stock reports and communications,
whether or not prepared with the Consultants' assistance; all data and
information supplied to any analyst, broker-dealer, market maker or other member
of the financial community; and all product/services brochures, sales materials,
etc. The company will comply with all requirements of the Securities Exchange
Act of 1934 on a timely basis.
(c) The Company shall promptly notify the Consultant of the filing of
any registration statement for the sale of securities and of any other event
that imposes any restrictions on publicity concerning the Company and its
affairs.
(d) The Company shall contemporaneously notify the Consultant if any
information or data being supplied to the Consultant has not been generally
released or promulgated.
6. REPRESENTATIVES AND INDEMNIFICATION BY COMPANY.
(a) The Company shall be deemed to make a continuing representation of
the accuracy of any and all material facts, information and data which it
supplies to the Consultant and the Company acknowledges its awareness that the
Consultant will rely on such continuing representations in disseminating such
information and otherwise performing its functions under the Agreement.
(b) The Consultant, in the absence of notice in writing from the
Company, will rely on the continuing accuracy of material, information and data
supplied by the Company.
(c) The Company hereby agrees to indemnify the Consultant, including
its officers, directors, agents and attorneys, against, and to hold the
Consultant harmless from, any claims, demands, suits, loss, damages, etc.
arising out of the Consultant's reliance upon the accuracy and continuing
accuracy of such facts, material, information and data, unless the Consultant
has been grossly negligent in fulfilling its duties and obligations hereunder.
(d) The Company hereby agrees to indemnify the Consultant against, and
to hold the Consultant, including its officers, directors, agents and attorneys,
harmless form, any claims, demands, suits, loss, damages, etc. arising out of
the Consultant's reliance on the general availability of information supplied to
the Consultant and the Consultant's ability to promulgate such information,
unless the Consultant has been grossly negligent in fulfilling his duties and
obligations hereunder.
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7. REPRESENTATIVES AND INDEMNIFICATION BY CONSULTANT.
(a) The Consultant agrees to provide the Consulting Services hereunder
in a manner consistent with the performance standards observed by other
professionals undertaking such functions.
(b) The Consultant agrees that it will not release or disseminate any
information pertaining to the Company that is not factual and that has not been
previously disseminated to the public.
(c) The Consultant hereby agrees to indemnify the Company against, and
to hold the Company harmless from, any claims, demands, suits, loss, damages,
etc. arising out of any inaccurate statement or misrepresentation provided that
such indemnification shall not pertain to any information provided by or
attributable to the Company.
8. CONFIDENTIALITY AND OTHER PROVISIONS.
(a) The Consultant shall not, except as authorized or required to
perform the Consulting Services, reveal or divulge to any person or companies
any of the trade secrets, secret or confidential operations, processes or
dealings or any information concerning the organization, business, finances,
transactions or other affairs of the Company, which may come to its knowledge
during the term of this Agreement and shall keep in complete secrecy all
confidential information entrusted to it and shall not use or attempt to use any
such information in any manner which may injure or cause loss, either directly
or indirectly, to the Company's business or may be likely so to do. This
restriction shall continue to apply after the termination of this Agreement
without limit in point of time but shall cease to apply to information or
knowledge, which may come into the public domain or otherwise required to be
disclosed pursuant to court or regulatory process. The Consultant shall comply
with such directions, as the Company shall make to ensure the safeguarding or
confidentiality of all such information.
(b) During the term of this Agreement, the Consultant shall devote
sufficient time, attention, and ability to the business of the Company as is
reasonably necessary for the proper performance of the Consulting Services
pursuant to this Agreement. Nothing contained herein shall be deemed to require
the Consultant to devote its exclusive time, attention and ability to the
business of the Company. During the term of this Agreement, the Consultant
shall:
(i) at all times perform the Consulting Services to the best of
its abilities and in the best interests of the Company; and
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(ii) devote such of its time, labor and attention to the business
of the Company as it, in its sole discretion, deems necessary
for the proper performance of the Consulting Services
hereunder; and
(c) The Company is aware that the Consultant has now and will continue
to, and the Company agrees that the Consultant may provide similar services to
those services contemplated by this Agreement to other companies, some of which
may be in competition with the Company, and the Company recognizes that these
companies will require a certain portion of the Consultant's time. Accordingly,
the Company shall not be precluded from engaging other consultants to act in a
function similar to that contemplated under this Agreement or in any other
capacity provided such action shall not prevent the Consultant from fulfilling
its duties pursuant to this Agreement.
(d) From the effective date of this Agreement, Company and its officers
will not engage any other person or entity to serve as its agent or
representative to provide services similar to those to be provided by Consultant
through the term of this Agreement without the prior written consent to
Consultant, which consent may be withheld for any reason.
9. RELATIONSHIP OF PARTIES. The Consultant is an independent
contractor, responsible for compensation of its agents, employees and
representatives, as well as all applicable withholding therefrom and taxes
thereon (including unemployment compensation) and all workers' compensation
insurance. This Agreement does not establish any partnership, joint venture, or
other business entity or association between the parties, and neither party is
intended to have any interest in the business or property of the other.
10. MISCELLANEOUS.
(A) ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, with
respect to such matters.
(B) NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 4:30 p.m. (Eastern Standard
time) on a business day, (ii) the business day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Agreement later than 4:30 p.m. (Eastern
Standard time) on any date and earlier than 11:59 p.m. (Eastern Standard time)
on such date, (iii) the business day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Company: Advanced Global International Corp.
000 X. Xxxxxxxx Xxxxxx, #000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx, President
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If to the Consultant: G.M. Capital Partners, Ltd.
Xxxxxxxxxxxxx00
XXX 0000
XX-0000 Xxxxxx
Xxxxxxxxxxx
Tel: 00.00.000.0000
Facsimile: 00.00.000.0000
Attention: X.X. Xxxxxx, Managing Director
or such other address as may be designated in writing
hereafter, in the same manner, by such party.
(C) AMENDMENTS; WAIVERS. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment,
by both the Company and the Consultant, or, in the case of a waiver, by the
party against whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
(D) HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. All words used in this Agreement will be construed
to be of such number and gender as the circumstances require.
(E) SUCCESSORS AND ASSIGNS. This Agreement is intended only for the
benefit of, shall be binding upon and inure to the benefit of the parties and
their respective successors. Anything in the foregoing to the contrary
notwithstanding, subject to compliance with applicable securities laws, the
Consultant may assign and/or transfer all or a portion of the consideration
payable by the Company hereunder.
(F) GOVERNING LAW. This Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of Nevada without
regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the United States
Federal District Court for Nevada for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, or that such suit, action or proceeding is
improper under such court's jurisdiction.
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(G) SEVERABILITY. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
(H) REMEDIES. In addition to being entitled to exercise all rights
provided herein or granted by law, including the recovery of damages, the
Consultant will be entitled to specific performance of the obligations of the
Company hereunder. The Company and the Consultant agree that monetary damages
would not be adequate compensation for any loss incurred by reason of any breach
of its obligations described in this Agreement and hereby agrees to waive in any
action for specific performance of any such obligation the defense that a remedy
at law would be adequate.
(I) NO REGISTRATION OF THE UNITS. The Consultant acknowledges that none
of the Units have been registered under the Securities Act of 1933, as amended
(the "Securities Act") and accordingly may only be sold or otherwise transferred
pursuant to an effective registration statement as to the Units under the
Securities Act or and application for exemption from the registration
requirements of the Securities Act.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
G.M. Capital Partners, Ltd.
By: /s/ X.X. Xxxxxx
--------------------------------------
X.X. Xxxxxx, Authorized Signatory
Advanced Global Industries Corporation
By: /S/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, President
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SCHEDULE A
TO THE CONSULTING AGREEMENT DATED AS OF DECEMBER 21, 2004
BETWEEN
G.M. CAPITAL PARTNERS, LTD. AND ADVANCED GLOBAL INDUSTRIES CORPORATION.
1.1 FINANCIAL PUBLIC RELATION SERVICES. The Consultant shall provide
the following financial public relation services to the Company:
(a) Acting as financial public relations counsel, serving (i)
as liaison between the Company and its stockholders; (ii) as advisor to
the Company with respect to existing and potential market makers,
broker-dealers, underwriters and investors as well as being the liaison
for the Company with respect to communications and information (e.g.,
interviews, press releases, stockholder reports, etc.) as well as
planning, designing, developing, organizing, writing and distribution
such communications and information.
(b) Assisting the Company in establishing an investor
relations program, and advise the Company with respect to stockholder
meetings, interviews of Company officers by the financial media, and
interviews of Company officers by analysts, market markers,
broker-dealers and other members of the financial community.
(c) Assisting the Company in order to make the Company, its
management, products and services, and financial situation and
prospects, known to the financial press and publications,
broker-dealers, mutual funds, institutional investors, market makers,
analysts, investment advisors and other members of the financial
community. No press releases will be made without consent of the
Consultant.
(d) The Company will notify the Consultant of any pending
press releases.
1.3 DISCLAIMER BY CONSULTANT. The Consultant makes no representation
that as a result of the services to be provided by it (a) the price of the
Company's publicly-traded securities will increase, (b) any person will purchase
securities in the Company as a result of the consulting services, or (c) any
investor will lend money to or invest in or with the Company.
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SCHEDULE B
TO THE CONSULTING AGREEMENT DATED AS OF DECEMBER 21, 2004
BETWEEN
G.M. CAPITAL PARTNERS, LTD. AND ADVANCED GLOBAL INDUSTRIES CORPORATION.
1.1 ASSISTANCE IN SECURING EQUITY AND OR DEBT FINANCING. The Consultant
will use its best efforts to introduce the Company to underwriters, financial
institutions, broker/dealers and private investors so that the Company may
directly pursue with such persons its financing requirements. If during the
Initial Term of the Agreement, any extension thereof, or for a period of 18
months following the termination of the Agreement, the Company shall consummate
a financing, whether in the form of equity, cash or other consideration, with
any person or entity directly or indirectly introduced to the Company by the
Consultant, then, the Consultant shall be entitled to, and the Company shall pay
the Consultant, a success fee (the "Success Fee) calculated as follows:
Consultant will receive a success fee ("Success fee") in the form of a
cash payment in the amount of five percent (5%) of the gross proceeds of any
private Financing, including any form of equity, convertible debt, debt with
warrants, debt with equity incentives to the lender, or any other form of
equity, debt or guarantees obtained by or invested in Company payable upon
closing or receipt of funds by Company or any entity, whichever is earlier.
Company shall have sole discretion in determining what constitutes an
acceptable Financing as contemplated by this Agreement. Consultant shall earn
the Success Fee only upon the closing or receipt of funds from a Financing, and
not merely for presenting a financing option or prospective investor which in
Company's sole discretion is unacceptable.
1.2 DISCLAIMER BY CONSULTANT. The Consultant makes no representation
that as a result of the services to be provided by it that any person or entity
will lend money to or invest in or with the Company.
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