Exhibit 10.4
FINANCIAL CONSULTING AGREEMENT
AGREEMENT made the ____ day of _________, 2002, by and between Xxxxxx
Securities, Inc., a New York corporation, having an address at 0000 Xxxxxxx
Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Xxxxxx"), and Montana Xxxxx Bread Co., Inc.,
a Delaware corporation, having an address at 0000 Xxxxxx Xxxxxx, Xxxxx 000X,
Xxxxxxxxx, Xxx Xxxx 00000 (the "Company").
WHEREAS, the Company has filed a registration statement with the
Securities and Exchange Commission for a proposed public offering of its
securities to be underwritten by Xxxxxx ("IPO"); and
WHEREAS, pursuant to the Underwriting Agreement between the Company and
Xxxxxx, the Company has agreed to retain Xxxxxx as a financial consultant;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Company retains Xxxxxx as a nonexclusive financial consultant to
provide to the Company when requested by the Company from time to time, during
normal business hours, upon reasonable notice, consultation concerning
shareholder relations, including advice regarding the preparation of reports and
other releases, long term financial planning, corporate reorganization and
expansion, capital structure, borrowings and other financial assistance. These
services shall be rendered by Xxxxxx without any direct supervision by the
Company and at such time and place and in such manner (whether by conference,
telephone, letter or otherwise) as Xxxxxx may reasonably determine. Xxxxxx shall
make available such time as it, in its sole and reasonable discretion, shall
deem appropriate for the performance of its obligations under this Agreement.
2. This Agreement shall become effective as of the effective date of
the IPO and shall continue for a period of two years thereafter.
3. As compensation for its services, the Company shall pay Xxxxxx the
sum of $75,000 per year, for an aggregate sum of $150,000 over the term of this
Agreement. The Company agrees to pay fees for the first year of this Agreement
($75,000), in advance, at the closing of the IPO, and for each year thereafter,
in advance on each anniversary of the effective date of the IPO during the term
hereof.
4. Xxxxxx covenants that all proprietary or confidential information
that it obtains knowledge of as a result of the services rendered pursuant to
this Agreement shall be kept confidential and shall not be used by Xxxxxx or
disclosed by Xxxxxx to any third party without the prior written approval of the
Company, except as otherwise required by law.
5. Xxxxxx shall bear all costs and expenses incurred by Xxxxxx directly
in connection with the performance of its services hereunder, unless otherwise
agreed to by the Company.
6. Xxxxxx and the Company acknowledge that Xxxxxx is an independent
contractor. Xxxxxx shall not hold itself out as, nor shall it take any action
from which others might infer that it is, a partner, agent or joint venturer of
the Company. Xxxxxx shall not take any action which binds, or purports to bind,
the Company.
7. This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. It may not be changed except by
agreement in writing signed by the party against whom enforcement or any waiver,
change, discharge, or modification is sought. Waiver of or failure to exercise
any rights provided by this Agreement in any respect shall not be deemed a
waiver of any further or future rights.
8. In the event of any dispute under this Agreement, then and in such
event, each party hereto agrees that the dispute shall be submitted to the
American Arbitration Association in Nassau County, New York, for its decision
and determination in accordance with its rules and regulations then in effect.
Each of the parties agrees that the decision and/or award made by the
Association may be entered as judgment of the courts of the State of New York,
and shall be enforceable as such.
9. This Agreement shall be construed and enforced in accordance with
the laws of the State of New York without giving effect to conflict of laws.
10. This Agreement may not be assigned by either party without the
written consent of the other. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and, except where prohibited, to
their successors and assigns.
11. Nothing herein shall be deemed to restrict or prohibit the
engagement by the Company of other consultants providing the same or similar
services or the payment by the Company of fees to such parties.
12. This Agreement may be terminated by the Company at any time upon
prior written notice to Xxxxxx; provided, however, that no such termination
shall reduce the amount payable under Section 3 or result in any refund of
amounts previously paid under Section 3, which latter amounts shall be deemed
earned in all respects prior to termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
XXXXXX SECURITIES, INC.
By:
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Xxxxx X. Xxxxxxx
Chairman
MONTANA XXXXX BREAD CO., INC.
By:
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Xxxxxx X'Xxxxxxx
President and Chief Executive
Officer
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