EXHIBIT "B"
Consulting Agreement
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ( "Agreement") is made this 18th day of July
1998, by and between Hudson Consulting Group, Inc., a Nevada corporation
("Consultant") and Flexweight Corporation, a Kansas corporation (the "Company").
WHEREAS, Consultant and Consultant's personnel are in the business of
assisting development stage companies through locating, evaluating, and
effecting mergers and acquisitions;
WHEREAS, Consultant is also in the business of providing general
financial advise to corporate management and also performs general
administrative duties for publicly-held companies; and
WHEREAS, the Company desires to retain Consultant to advise and assist
the Company 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
Consultant agree as follows:
1. Engagement
The Company hereby retains Consultant, effective the date hereof and
continuing until termination, as provided herein, to (1) assist the
Company in locating evaluating, and effecting a merger and/or
acquisition; (2) provide general financial advice to corporate
management; (3) provide general administrative duties and (4) assist in
the acquisition of various assets (the "Services"). The Services are to
be provided on a "best efforts" basis directly and through Consultant's
employees or others employed or retained and under the direction of
Consultant ("Consultant's Personnel"); provided, however, that the
Services shall expressly exclude all legal advice, accounting services
or other services which require licenses or certification.
2. Term
This Agreement shall have an initial term of one (1) year (the "Primary
Term"), with an effective date retroactive to the date services were
first performed by Consultant, which was on or about January 2, 1998.
3. Time and Effort of Consultant
Consultant shall allocate time and Consultant'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. Consultant has provided a
statement identifying, in general, the tasks its has performed from
January 1, 1998 to June 30, 1998, attached as Exhibit A. The Company
has reviewed this statement and believes the time and effort expended
by Consultant to be reasonable for the tasks its has completed.
Consultant will continue to provide billing statements on a monthly
basis or within (7) days upon the Company's request. These billing
statements shall be conclusive evidence that the Services have been
performed. Additionally, in the absence of willful misfeasance, bad
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faith, negligence or reckless disregard for the obligations or duties
hereunder by Consultant, neither Consultant nor Consultant's personnel
shall be liable to the Company or any of its any 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 Asset Opportunity or Business
Opportunity (as defined herein) undertaken by the Company as a result
of advice provided by Consultant or Consultant's personnel.
4. Compensation
The Company agrees to pay Consultant a fee for the Services it has
provided from January 1, 1998 to June 30, 1998, as stated in Exhibit A
(the "Initial Fee") by way of the issuance by the Company of Three
Hundred Thousand (300,000) shares of the Company's common stock. After
the Initial Fee is paid covering the first 6 months of the Primary
Term, the Company agrees to pay Consultant in shares of its common
stock for the Services Consultant provides at a rate of 15,000 shares
per month (the "Fee Shares").
5. Other Services
If the Company subsequent to the date hereof enters into a merger,
acquisition or purchases assets as a direct or indirect result of
Consultants efforts, the Company agrees to pay Consultant a fee in the
manner described below.
If the Company acquires any asset as a result of Consultants services,
excluding the acquisition of a controlling interest in an entity
through the purchase of substantially all of the entities assets or
stock ("Asset Opportunity"), the Company will pay Consultant a fee
equivalent to 10% of the value of such asset. The Company at its
discretion can pay Consultant in cash, shares of the Company or in like
kind for Assets Opportunity the Company acquires as a result of
Consultant's efforts excluding the acquisition of a controlling
interest in an entity ("Consultant's Fee").
If Consultant assists the Company in a merger, acquisition or an asset
purchase of an entity ("Business Opportunity"), Consultant shall be
paid 5% of the gross value of the merger or acquisition transaction in
shares of common stock of the Company within (5) days of signing a
Definitive Merger, Acquisition or Asset Purchase Agreement ("M&A Fee").
For purposes of determining Consultants M&A Fee, the Company's shares
will be valued at $6.00 per share for assisting the Company in a
merger, acquisition or asset purchase.
The Fee Shares, Consultant's Fee and M&A Fee and any other shares
issued pursuant to this Agreement are in addition to any compensation
paid to Consultant for its role or any of Consultant's affiliates role,
in effecting the acquisition of Oasis Resort, Hotel & Casino-III, Inc.,
the purchase of any land held by the Company formerly owned by
Consultant's affiliates in Oasis, Nevada, or any other shares issued to
Consultant or its affiliates prior to July 18, 1998.
6. Registration of Shares
The Company shall register all shares of its common stock payable to
Consultant with the Securities and Exchange Commission under a Form S-8
or other applicable registration statement, and the Company shall cause
such registration statement to be remain effective at all times while
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Consultant holds shares issued to Consultant pursuant to this
Agreement.
The Company will pay the Initial Fee upon demand from Consultant with
shares registered under an applicable registration statement. If the
Company decides to pay the Consultant Fee or the M&A Fee with shares of
its common stock such shares shall be registered and payable with 5
days of the event giving rise to the Company's obligation to pay
Consultant.
However, if Consultant at Consultant's election, agrees to accept such
shares from the Company based upon 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 the
Company will have no obligation to register Consultant's shares.
7. Costs and Expenses
All third party and out-of-pocket expenses incurred by Consultant in
the performance of the Services shall be paid by the Company, or
Consultant shall be reimbursed if paid by Consultant on behalf of the
Company, within ten (10) days of receipt of written notice by
Consultant, provided that the Company must approve in advance all such
expenses in excess of $500 per month.
8. Place of Services
The Services provided by Consultant or Consultant's Personnel hereunder
will be performed at Consultant's offices except as otherwise mutually
agreed by Consultant and the Company.
9. Independent Contractor
Consultant and Consultant's Personnel will act as independent
contractors in the performance of any duties under this Agreement.
Accordingly, Consultant 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 Consultant'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 Consultant's Personnel and the
Company. Neither Consultant nor Consultant'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
Asset Opportunity or Business Opportunity introduced by Consultant, and
to make all final decisions with respect to all transactions on any
Asset Opportunity or Business Opportunity.
10. Rejected Asset Opportunity or Business Opportunity
If, during the term of this Agreement, the Company elects not to
proceed to acquire, participate or invest in any Asset Opportunity or
Business Opportunity identified and/or selected by Consultant,
notwithstanding the time and expense the Company may have incurred
reviewing such transaction, such Asset Opportunity or Business
Opportunity shall re-vest back to and become proprietary to Consultant,
and Consultant shall be entitled to acquire or broker the sale or
investment in such rejected Asset or Business or Business Opportunity
for its own account, or submit such assets or Business Opportunity
elsewhere. In such event, Consultant shall be entitled to any and all
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profits or fees resulting from Consultant's purchase, referral or
placement of any such rejected Asset Opportunity or Business
Opportunity, or the Company's subsequent purchase or financing with
such Asset Opportunity or Business Opportunity in circumvention of
Consultant.
11. No Agency Express or Implied
This Agreement neither expressly nor impliedly creates a relationship
of principal and agent between the Company and Consultant, or employee
and employer as between Consultant's Personnel and the Company.
12. Termination
The Company and Consultant 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,
Consultant is unable to provide the Services as set
forth herein for thirty (30) consecutive business
days because of illness, accident, or other
incapacity of Consultant's personnel; or,
(ii) If Consultant willfully breaches or neglects the
duties required to be performed hereunder; or,
(B) By Consultant.
(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, other than in a
merger arranged by Consultant, 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, including but not limited to the
obligation to pay the Initial Fee, the M&A Fee, or
the Consultant Fee; 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,
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(v) If any of the disclosures made herein or subsequent
hereto by the Company to Consultant are determined to
be materially false or misleading.
In the event Consultant elects to terminate without cause or this
Agreement is terminated prior to the expiration of the Primary Term 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
Consultant for unreimbursed expenses, Consultant Fee and M&A Fee
accrued up to and including the effective date of termination. If this
Agreement is terminated by the Company for any other reason, or by
Consultant for reasons set forth in B(i) through (v) above, Consultant
shall be entitled to any outstanding unpaid portion of reimbursable
expenses, M&A Fee, if any, and the balance of the Consultant Fee for
the remainder of the unexpired portion of the applicable term (Primary
Term) of the Agreement.
13. Indemnification
Subject to the provisions herein, the Company and Consultant 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.
14. Remedies
Consultant 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.
15. Miscellaneous
(A) Subsequent Events. Consultant 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
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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.
(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:
Flexweight Corporation
915 North Wells, Suite 4
Wendover, NV 89883
Telephone: (702) 664-3919
Facsimile: (702) 664-2331
(ii) In the case of Consultant:
Hudson Consulting Group, Inc.
268 West 400 South, Suite 300
Salt Lake City, Utah 84101
Telephone: (801) 575-8073
Telefax: (801) 575-8092
or to such other person or address designated in writing by
the Company or Consultant 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
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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.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date above written.
"Consultant"
Hudson Consulting Group, Inc.
a Nevada corporation
By:/s/ Richard Surber
------------------
Name: Richard Surber
Title: President
The "Company"
Flexweight Corporation
a Kansas corporation
By:/s/ Walter G. Sanders
---------------------
Name: Walter Sanders
Title: President
Exhibit A
"Initial Fee" Invoice.
HUDSON CONSULTING GROUP, INC.
Invoice submitted to:
Flexweight Corporation
915 North Wells, Suite #4
Wendover, NV 89883
July 18, 1998
Professional Services - January 1, 1998 to June 30, 1998
Hours
-----
Kimberly Barrager - SEC filing 1.00
Phyllis Cummings - Corporate document preparation, SEC 20.75
filing 20.75 preparation and research.
Melinda Druce - Corporate document preparation 4.50
Gerald Einhorn - Corporate document preparation, research and 35.00
conference
Mike Golightly - Corporate document preparation 2.75
Steve Mallery - Maintaining corporate books, document preparation, 56.25
SEC filing preparation, research and conference
Wayne Newton - Corporate document preparation, review corporate 87.75
documents, research, conference with auditors and update
general ledger
Judith Richardson - Discussion and document preparation relating 3.75
to Flexweight's 10-QSB and 10-KSB
Sheila Smith - Preparation of financials and accompanying notes and 2.50
document preparation
Professional Services - January 1, 1998 to June 30, 1998
(Continued)
Hours
-----
Bonnie Tippetts - Corporate document preparation and clerical 15.50
Contract Work
A-Z Professional Consultants, Inc. - Negotiations and financial 40.00
analysis of acquisition of Mizpah Hotel, parcels of land
in Wendover, Nevada and various phone conferences with
principals
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TOTAL HOURS 269.75
Description Amount
- ----------- ------
Initial Fee pursuant to Consulting Agreement dated 300,000 shares of
July 18, 1998 Flexweight Common
Stock
Addendum
This Addendum to the Consulting Agreement dated July 18, 1998 between
Flexweight Corporation (the "Company") and Hudson Consulting Group, Inc. (the
"Consultant") is entered into this 15th day of September 1998.
Premises
WHEREAS, the Company must receive a reduction in fees payable to the
Consultant in order to close upon the Asset Purchase Agreement signed September
14, 1998, so that it can provide fee shares to other consultants;
WHEREAS, the Consultant has assisted in procuring, coordinating
adivising and other services relating to the Asset Purchase Agreement with
NuOASIS International, Inc. and wishes to assist in a timely closing upon the
Asset Agreement and is willing to reduce its fee accordingly;
WHEREAS, the Consultant has agreed to waive its 300,000 share initial
fee in favor of Oxford Consulting, Inc.;
WHEREAS, the Consultant has agreed to reduce its fee for procuring and
assisting the Company in signing and eventually closing up the Asset Purchase
Agreement from the contemplated 1,833,333 shares to 1,500,000 shares of the
Company's common stock;
WHEREAS, the Consultant has agreed to waive its 45,000 share fee for
consulting work performed in July, August and September;
Agreement
BASED on the above premises, which are hereby incorporate by this
reference and inconsideration of the mutual promises contained herein, the
benefit to be derived by each party hereunder and other good and valuable
consideration, the sufficiency of which is hereby expressly acknowledged, the
Consultant and the Company agree to amend the Consulting Agreement to reflect
the above reductions in compensation.
IN WITNESS WHEREOF, the parties hereto have executed this addendum.
EXECUTED this 15th day of September, 1998
Hudson Consulting Group, Inc. Flexweight Corporation
/s/ Richard Surber /s/ Walter G. Sanders
- ------------------------ ---------------------
Richard Surber, President Walter Sanders, President