EXHIBIT "B"
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ( the "Agreement") is made this 18th day of
July 1998, by and between NuVen Advisors, Inc., a Nevada corporation ("Advisor")
and Flexweight Corporation, a Kansas corporation (the "Company").
WHEREAS, Advisor and Advisors'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, retroactive to April 1, 1998, the
date Advisor first began providing the services ( the "Effective Date")
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 Advisor's officers or 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 one (1) year (the "Primary
Term"), commencing with the Effective Date. At the conclusion of the
Primary Term this Agreement will automatically be extended on an annual
basis ( the "Extension Period") unless Advisor of 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 ind of the Primary
Term or any subsequent Extension Period.
3. Time and Effort of Advisor
Advisor shall allocate time and Advisors 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 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 Business Opportunity (as defined
herein)
undertaken by the Company as a result of advice provided by Advisor or
Advisors's Personnel.
4. Compensation
The Company agrees to pay Advisor a fee for the Services ("Initial
Fee") by way of the issuance by the company of Forty Thousand (40,000)
shares of the Company's common stock following the Company's closing on
the purchase of the initial Business Opportunity ( as defined below),
and a monthly fee ("Advisory Fee") equal to Three Thousand Dollars
($3,000), payable monthly in cash or shares of the Company's stock, at
the Company's election.
As incentive to execute this Agreement, the Company hereby grants to
Advisor an option to purchase Three Hundred Fifty Thousand (350,000)
shares of the Company's common stock ("Option Shares") exercisable at a
price of $6.00 per share, which is approximately 110% of the 10-day
moving average closing bid price for such shares at July 15, 1998.
Advisory's tight to purchase such Option Shares shall be governed by
the terms and conditions of the Option Agreement attached hereto as
Exhibit "A" and incorporated herein by reference ( the "Option"). The
right of Advisor to exercise such Option will vest to Advisor upon
execution hereof
5. Other Services
If, following the Closing by the Company of the first Business
Opportunity, the Company enters into a merger or exchange securities
with, or purchases the assets or enters into a joint venture with , or
makes an investment in a company introduced by Advisor ( a "Business
Opportunity"), the Company agree's to pay Advisor a fee equal to five
percent ( 5%) of the value of each Business Opportunity introduced by
Advisor and acquired of otherwise participated in by the Company
(collectively referred to herein, in each instance, as the "Transaction
Fee"), which shall be payable immediately following the closing of each
such transaction, in cash or in shares of the Company's common stock.
The Company and Advisor acknowledges that in the event Advisor, as a
result of this agreement, receives shares of the Company's common stock
it may be considered an affiliate subject to Section 16(b) of the
Securities Exchange Act of 1934 (the "34 Act"). In this regard the
Company and Advisor agree , that for the purposes of any "profit"
computation under Section 16(b) of the '34 Act, the price paid for such
shares is equal to the Initial Fee, the Advisory Fee or the Transaction
Fee, as the case may be.
6. Registration of Shares
No later than ten (10) days following the date hereof as to share
issued to satisfy the Advisory Fee ( if paid in shares), the Option
Shares, and as to an event giving use to the Company's obligation to
pay a Transaction Fee, such shares shall be registered by the Company
with the Securities and Exchange Commission under a Form S-8 or other
applicable registration statement to be remain effective until the
earlier of the first anniversary of the issuance of the most recently
issued shares, or the sale of all such shares by Advisor, whichever is
the earlier date. 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 share, or maintain the effectiveness of the applicable
registration statement, the Company shall satisfy any Initial Fee,
Transaction Fee of Advisory Fee in cash within ten (10) days of receipt
of Advisor's statement setting out the amount and type of fee then due
and payable.
7. Costs and Expenses
All third party and out-of-pocket expenses incurred by Advisor in the
performance of the Services shall be paid by the Company, or Advisor
shall be reimbursed if paid by Advisor 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 Advisor or Advisor's Personnel hereunder will
be performed at Advisor's offices except as otherwise mutually agreed
by Advisor and the Company.
9. 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 Asset Opportunity or Business
Opportunity introduced by Advisor, and to make all final decisions with
respect to effecting a transaction on any Business Opportunity.
10. Rejected Asset Opportunity or 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 revert 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
11. 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.
12. 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,
(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, other than in the
Initial Merger, 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 Transaction
fee, or the Advisory 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,
(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 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 unreimbursed expenses, Advisory Fee and
Transaction 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 Advisor for reasons set forth in B(i) through (v)
above, Advisor shall be entitled to any outstanding unpaid portion of
reimbursable expenses, Transaction Fee, if any, and the balance of the
Advisory Fee for the remainder of the unexpired portion of the
applicable term
(Primary Term or Extension Period) of the Agreement.
13. 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.
14. 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.
15. 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.
(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
Wendover, NV 89803
Telephone: (702) 664-3919
Facsimile: (702) 664-2331
With copy to:
Hudson Consulting Group.
268 West 400 South
Salt Lake City, Utah 84101
Telephone: (801) 575-8073
Telefax: (801) 575-8092
(ii) In the case of Advisor:
NuVen Advisors, Inc.
6337 So. Highland Drive, Suite 319
Salt Lake City, Utah 84121
Telephone: (801) 277-8755
Telefax: (801) 277-8755
With copy to:
Richard O. Weed
Archer & Weed
4695 MacArthur Court, Suite #530
Newport Beach, CA 92660
Telephone: (714) 833-5363
Telefax: (714) 833-5384
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 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 understan
dings, 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.
"Advisor"
NuVen Advisors, Inc.
a Nevada corporation
By:/s/ Richard Surber
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Name: Richard Surber
Title: President
The "Company"
Flexweight Corporation
a Kansas corporation
By:/s/ Walter G. Sanders
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Name: Walter Sanders
Title: President