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FINANCIAL ADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of this 10th day of June , 2002 and is made between Fuselier and Co., Inc., a Connecticut corporation (hereinafter referred to as “Advisor”) and IEME, Inc., a ___________ corporation (hereinafter referred to as the “Company”).
WITNESSETH
WHEREAS, the Company is desirous of obtaining financial advisory services from Advisor;
WHEREAS, Advisor is experienced in providing financial and advisory services;
WHEREAS, Advisor will incur substantial time and expense in connection with the fulfilling of its duties, under and pursuant to the terms of this Agreement; and
WHEREAS, in consideration for Advisor agreeing to incur the time and expense of performing the services called for in this Agreement, the Company agrees to pay the considerations called for in this Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants set forth, it is agreed as follows:
AGREEMENT
1. ADVISORY SERVICES. Advisor shall provide to the Company, when and as requested by the Company, from time to time, during normal business hours, business advisory services and advice concerning, but not limited to: (i) creating and executing plans for financing of the expansion and growth of the operations of the Company, including the review of public and private offerings of the Company’s securities; (ii) acting as the liaison for the Company with respect to any broker-dealers utilized for any such financing, including the review of coordination of all selling efforts of the Company’s securities and the creation of selling groups and or selling syndicates; (iii) engaging market makers for the Company’s traded securities once the Company is public; (iv) determining the structuring and the evaluation of any financing proposals; (v) establishing escrow arrangements; (vi) arranging printing of any documents and overseeing such printing; (vii) participating in selecting and supervising legal counsel and auditors for the Company which are deemed qualified by Advisor to perform the services required; (viii) shareholder or investor relations, including, hiring a financial and a public relations firm, participating in the preparation of annual reports and other press or public releases of information; (ix) long term financial planning; (x) corporate reorganization and expansion and acquisition opportunities; (xi) capital structure; and (xii) borrowing and other financial assistance.
2. ADDITIONAL SERVICES. In connection with the services to be provided by Advisor, Advisor may compile due diligence related to the Company. Advisor shall assist in the accumulation of any due diligence and the preparation of any documents on behalf of the Company as deemed necessary and appropriate in connection with the services to be rendered by Advisor. Notwithstanding the foregoing, Advisor shall be under no obligation to provide services hereunder more frequently than 40 hours during each month during the term hereof. Any services, if requested, such as rendering opinions on specific transactions, will be the subject of separate agreements between the parties hereto, if not otherwise covered by the terms hereof.
3. TERM OF AGREEMENT. This Agreement shall become effective as of the date first above written and shall continue until for a period of two years (the “Term”). However, in the event the Company effectuates a debt or equity financing of at least $ 2,000,000, whether through a private offering of its securities of the filing of a registration statement with the Securities and Exchange Commission (“SEC”) during the Term or through other conventional means, this Agreement shall continue for an additional two year period.
4. SCOPE OF RETENTION. The Company hereby retains Advisor on an non-exclusive basis as its financial Advisor and finder during the Term of this Agreement. In the event that the Company does not call upon Advisor’s services during the Term of this Agreement, the Company shall remain liable to pay the fees and costs set forth in Sections 5,6 and 7, hereto.
5. INITIAL COMPENSATION. The Company shall pay Advisor the sum of $ 2,500 per month, during the Term, payable on the first day of each month following the date of execution of this Agreement as an Advisory fee.
6. ADDITIONAL COMPENSATION In addition of the fees payable pursuant to Section 5 hereof, Advisor shall be additionally compensated as follows:
(a) for securing commitments or funding from traditional institutions such as banks, finance or leasing companies, Advisor shall receive a cash fee equal to ten percent (10%) of the amount secured:
(b) for privately securing other debt or equity on or off the Company’s balance sheet, Advisor shall receive a cash fee equal to ten percent (10%) of the amount secured;
(c) for identifying, assisting or structuring a merger or acquisition for or by the Company, Advisor shall receive a cash fee equal to ten percent (10%) of the value of the transaction, including any trailing value in the transaction;
(d) for arranging the initial merger with a public company, Advisor shall receive ten percent (5%) of the total issued and outstanding stock of the post merged Public Entity.
Such fees shall be due and payable upon the takedown of such commitment, loans or funding or upon each of the closing of any private or public offering of the Company’s securities, merger, acquisition or other applicable transaction. At Advisor’s option, such fees may be paid in stock at a conversion price set as of the date of a bonafide Letter of Intent between the parties in an acquisition or upon receipt of a bonafide term sheet from a lending institution.
7. REIMBURSEMENT OF REASONABLE COSTS. Advisor shall be reimbursed, within twenty (20) days of presentation of a bill, with vouchers attached, by the Company for all reasonable and necessary out of pocket expenses, including travel and entertainment, incurred by the Advisor in connection with the performance of its obligations hereunder (also including reasonable fees and disbursements of Advisor’s counsel and experts).
8. INDEPENDENT CONTRACTOR. Advisor and the Company hereby acknowledge and agree that the Advisor is an independent contractor and is not a licensed broker-dealer. Advisor shall not hold itself out as, nor shall it take any action from which others might infer that it is a partner or agent of or a joint venturer with the Company. In addition, Advisor shall take no action, which binds, or purports to bind, the Company.
9. LAW, FORUM OR AND JURISDICTION. This Agreement shall be construed and interpreted in accordance with the laws of the State Of Connecticut. The parties agree that any dispute arising out of this Agreement, whether during the Term of the Agreement or at any subsequent time, shall be resolved exclusively in the courts of the State of Connecticut and the parties hereby submit to the jurisdiction of such courts for all purposes provided herein and appoint the Secretary of the State of the State of Connecticut as agent for service of process for all purposes provided herein.
10. NOTICES. Any notices or other communications required or permitted hereunder shall be sufficiently given if personally delivered to it or sent by certified mail, postage prepaid, or by prepaid telegram addressed as follows:
If to Advisor: Fuselier and Co., Inc.
304 Federal Road – Suite 319
Brookfield, Connecticut 06804
If to the Company: ________________________
________________________
________________________
Or such other addresses as shall be furnished in writing by any party in the manner for giving notices hereunder, and any such notice or communication shall be deemed to have been given as of the date so delivered, mailed, or telephoned.
11. ATTORNEYS’ FEES. In the event that any party institutes any action or suit to enforce this Agreement or to secure relief from any default hereunder or breach hereof, the breaching party or parties shall reimburse the non-breaching party or parties for all costs, including reasonable attorneys’ fees, incurred in connection therewith and in enforcing or collecting any judgement rendered therein.
12. CONFIDENTIALITY. Each party hereto agrees with the other parties that, unless and until mutually agreed upon, they and their representatives will hold in strict confidence all data and information obtained with respect to another party or any subsidiary thereof from any representative, officer, director or employee, or from any books or records or from personal inspection, of such other party, and shall not use such data or information or disclose the same to others, except: (i) to the extent such data is a matter of public knowledge or is required by law to be published; and (ii) to the extent that such data or information must be used or disclosed to consummate the transactions contemplated by this Agreement.
13. TERMINATION. This agreement is terminable, by Advisor during the Term hereof by giving notice to the Company in the event that the Company shall have provided inaccurate or misleading information, of any type or nature, to the Advisor or failed or been unable to comply with any of the terms, conditions or provisions of this Agreement on the part of the Company to be performed, complied with or fulfilled within the respective times, if any, herein provided for, unless compliance therewith or the performance or satisfaction thereof shall have been expressly waived by the Advisor in writing.
Any termination of this Agreement pursuant to this section 13 shall be without liability of any character (including, but not limited to, loss of anticipated profits or consequential damages) on the part of the Company, except that the Company shall remain obligated to pay the fees and costs otherwise to be paid, as set forth in this Agreement.
14. THIRD PARTY BENEFICIARIES. This Agreement is solely among the Advisor and the Company and, except as specifically provided, no creditor, director, officer, stockholder, employee, agent, independent contractor or any other person or entity shall be deemed to be a third party beneficiary of this Agreement.
15. ENTIRE AGREEMENT. This Agreement represents the entire Agreement between the parties relating to the subject matter hereof. This Agreement alone fully and completely expresses the agreement of the parties relating to the subject matter hereof. There are no other courses of dealing, understandings, agreements, representations or warranties, written or oral, except as set forth herein. This Agreement may not be amended or modified, except by a written agreement signed by all parties hereto.
16. SURVIVAL; TERMINATION. The representations, warranties and covenants of the respective parties shall survive the consummation of the transactions herein contemplated.
17. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall be but a single instrument.
18. AMENDMENT OR WAIVER. Every right and remedy provided herein shall be cumulative with every other right and remedy, whether conferred herein, at law, or in equity, and may be enforced concurrently herewith, and no waiver by any party of the performance of any obligation by the other shall be construed as a waiver of the same or any other default then, therefore, or thereafter occurring or existing. At any time prior to the Closing Date, this Agreement may be amended by a writing signed by all parties hereto, with respect to any of the terms contained herein, and any term or condition of this Agreement may be waived or the time for performance hereof may be extended by a writing signed by the party or parties for whose benefit the provision is intended.
19. INCORPORATION OF RECITALS. All of the recitals hereof are incorporated by this reference and are made a part hereof as though set forth at length herein.
20. HEADINGS; CONTEXT. The headings of the sections and paragraphs contained in this Agreement are for convenience of reference only and do not form a part hereof and in no way modify, interpret or construe the meaning of this Agreement.
21. BENEFIT. This Agreement shall be binding upon and shall insure only to the benefit of the parties hereto, and their permitted assigns hereunder. This Agreement shall not be assigned by any party without the prior written consent of the other party.
22. SEVERABILITY. In the event that any particular provision or provisions of this Agreement or the other agreements contained herein shall for any reason hereafter be determined to be unenforceable, or in violation of any law, governmental order or regulation, such unenforceability or violation shall not affect the remaining provisions of such agreements, which shall continue in full force and effect and be binding upon the respective parties hereto.
23. NO STRICT CONSTRUCTION. The language of this Agreement shall be construed as a whole, according to its fair meaning and intendment, and not strictly for or against either party hereto, regardless of who drafted or was principally responsible for drafting the Agreement or terms or conditions hereof.
24. EXECUTION KNOWING AND VOLUNTARY. In executing this Agreement, the parties severally acknowledge and represent that each: (a) has fully and carefully read and considered this Agreement; (b) has been or has had the opportunity to be fully apprised of its attorneys of the legal effect and meaning of this Agreement and all terms and conditions hereof; (c) has been afforded the opportunity to negotiate as to any and all terms hereof; and (d) is executing this Agreement voluntarily, free from any influence, coercion or duress of any kind.
IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to be executed as of the day and year first above written.
(“Advisor”) (“Company”)
By: ___________________ By: __________________________
David N. Fuselier, President Its: President
