EXHIBIT 10.3
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
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THIS FINANCIAL ADVISORY AND CONSULTING AGREEMENT (this "Agreement") is made
and entered into as of September 8, 2000 by Flexxtech Holdings, Inc. a Nevada
Corporation ("Flexxtech" or "the Company"), and Ameri-First Financial Group, a
Nevada corporation ("Ameri-First ").
PRELIMINARY STATEMENT
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A. Flexxtech has agreed to render financial advisory services in
connection with, among other things, the negotiation of transactions, marketing
and support of the Company, acquisitions, and corporate organization (the
"Transaction").
B. Ameri-First has requested that Flexxtech render financial advisory,
consulting, and other similar services to the Company with respect to certain
future transactions by the Company.
C. Ameri-First has requested that Flexxtech render financial oversight
and management services to the Company on an ongoing basis.
NOW, THEREFORE, in consideration of the services rendered and to be
rendered by Flexxtech and the mutual covenants herein contained, and for other
good, valuable and binding consideration, the receipt and sufficiency of which
are hereby acknowledged, Flexxtech and Ameri-First , intending to be legally
bound hereby, now agree as follows:
STATEMENT OF AGREEMENT
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Section 1. Retention.
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(a) Ameri-First hereby retains Flexxtech as financial advisor to
the Company in connection with the marketing and support of its company as well
as consulting services.
(b) The Company hereby retains Flexxtech to provide ongoing
financial oversight and management services to the Company as may be reasonably
requested by the board of directors of the Company during the term of this
Agreement.
Section 2. Term. The term of this Agreement shall continue until the
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earlier to occur of (i) the first anniversary of the date hereof and (ii) one
year.
Section 3. Duties of Flexxtech. Flexxtech will perform the following
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duties under this Agreement:
(a) assist the Company in shareholder relations;
(b) use its best efforts to bring awareness to the financial
community and the public of the company and its common
stock;
(c) communicate to the Company, orally or in writing, and
(d) assist the Company in negotiating contracts and or private
placements.
Section 4. Representations, Warranties and Covenants of Ameri-First.
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The Company represents and warrants to the following:
(a) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the
State of Nevada.
(b) Ameri-First has all requisite corporate power and
authority to enter into this Agreement and to perform
its obligations hereunder. When executed and delivered
by Ameri-First and the Company, this Agreement will
constitute a valid and legally binding obligation of
the Ameri-First, enforceable in accordance with its
terms.
(c) This Agreement will not (i) conflict with or result in
a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, or other agreement or
instrument to which Ameri-First or any of its
subsidiaries is a party or by which the Ameri-First or
any of its subsidiaries is bound, or to which any of
the property or assets of Ameri-First or any of its
subsidiaries is subject, or (ii) subject to obtaining
any required consent of its shareholder, result in any
violation of the provisions of the Certificate or
Articles of Incorporation or By-Laws of Ameri-First
(d) The Ameri-First will furnish to the Company any
information concerning Ameri-First and its subsidiaries
which the Company reasonably deems appropriate, and
will provide the Company access to the Ameri-First's
officers, directors, accountants, counsel and other
advisors. All such information concerning the Ameri-
First and its subsidiaries is and will be true and
accurate in all material respects, and does not and
will not as of its date, and will not as supplemented
or amended as of the date of the Closing, contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein not misleading in light of the circumstances
under which such statements are or were made. Ameri-
First acknowledges and agrees that the Company will be
using and relying upon such information supplied by the
Ameri-First, its officers, directors, accountants,
counsel and other advisors, and other publicly-
available information concerning Ameri-First and its
subsidiaries, without any independent investigation or
verification thereof or any independent appraisal by
the Company of Ameri-First or its business or assets
(e) Ameri-First agrees that if, at any time during the Term
of this Agreement, any event shall have occurred as a
result of which the financial statements include an
untrue statement of a material fact or omit to state
any material fact necessary in order to make the
statements therein, in light of the circumstances under
which they are made, not misleading, or, if for any
other reason it shall be necessary during such period
to amend or supplement the financial information Ameri-
First shall notify the Company promptly and provide the
Company with such information as shall be necessary so
that an appropriate amendment or supplement to the
financials and other statements can be prepared or
other appropriate action taken.
Section 5. Compensation.
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(a) As compensation for Flexxtech's services as financial
advisor to the company in connection with this Agreement, Ameri-First agrees to
issue to Flexxtech five hundred thousand (500,000) shares of common stock of
Ameri-First Financial Group, Inc. (OTCBB: AMFR), at $.001 per share (par value)
or $500. Ameri-First agrees that the 500,000 shares has been paid in full for
services already rendered and that a certificate shall be immediately issued
upon signing this Agreement. Ameri-First agrees to register the 500,000 shares
with the Securities and Exchange Commission under Regulation S-8 (Consultants
Stock) within ninety (90) days of the signing of this Agreement. After ninety
days and the common stock herein has not been registered, this Agreement shall
be in breach by Ameri-First and as a penalty for Ameri-First's breach, Ameri-
First shall, each month the
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stock has not been registered agrees to issue an additional Fifty (50,000)
shares of Ameri-First stock under the same terms as this Section 5, same price
of $.001 per share, considered for services already rendered and registered
under SEC Regualtion S-8 within ninety days.
Section 6. Reimbursement of Expenses. In addition to the compensation
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to be paid pursuant to Section 5 hereof, Ameri-First agrees to pay or reimburse
Flexxtech for all "Reimbursable Expenses".
Section 7. Indemnification. Ameri-First shall indemnify and hold
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harmless each of Flexxtech, its affiliates, and their respective directors,
officers, controlling persons (within the meaning of Section 15 of the
Securities Act of 1933 or Section 20(a) of the Securities Exchange Act of 1934),
if any, agents and employees (Flexxtech, its affiliates, and such other
specified persons being collectively referred to as "Indemnified Persons" and
individually as an "Indemnified person") from and against any and all claims,
liabilities, losses, damages and expenses incurred by any Indemnified Person
(including those resulting from the negligence of the Indemnified Person and
fees and disbursements of the respective Indemnified Person's counsel) which (A)
are related to or arise out of (i) actions taken or omitted to be taken
(including any untrue statements made or any statements omitted to be made) by
Ameri-First or (ii) consent or in conformity with Ameri-First's instructions or
Ameri-First's action or omissions or (B) are otherwise related to or arise out
of Flexxtech's engagement hereunder, and will reimburse each Indemnified Person
for all costs and expenses, including fees of any Indemnified Person's counsel,
as they are incurred, in connection with investigating, preparing for,
defending, or appealing any action, formal or informal claim, investigation,
inquiry or other proceeding, whether or not any liability results therefrom.
AMERI-FIRST HEREBY ACKNOWLEDGES THAT THE FOREGOING INDEMNITY SHALL BE APPLICABLE
TO ANY CLAIMS, LIABILITIES, LOSSES, DAMAGES, OR EXPENSES THAT HAVE RESULTED FROM
OR ARE ALLEGED TO HAVE RESULTED FROM THE ACTIVE OR PASSIVE OR THE SOLE, JOINT OR
CONCURRENT ORDINARY NEGLIGENCE OF FLEXX OR ANY OTHER INDEMNIFIED PERSON.
The foregoing right to indemnity shall be in addition to any rights that
Flexxtech and/or any other Indemnified Person may have at common law or
otherwise and shall remain in full force and effect following the completion or
any termination of the engagement. Ameri-First hereby consents to personal
jurisdiction and to service and venue in any court in which any claim which is
subject to this Agreement is brought against Flexxtech or any other Indemnified
Person.
It is understood that, in connection with Flexxtech's engagement, Flexxtech
may also be engaged to act for Ameri-First in one or more additional capacities,
and that the terms of this engagement or any such additional engagement may be
embodied in one or more separate written agreements. This indemnification shall
apply to the engagement specified in the first paragraph hereof as well as to
any such additional engagement(s) (whether written or oral) and any modification
of said engagement or such additional engagement(s) and shall remain in full
force and effect following the completion or termination of said engagement or
such additional engagements.
If the indemnity referred to in this Agreement should be, for any reason
whatsoever, rendered unenforceable, unavailable or otherwise insufficient to
hold each Indemnified Person harmless, Ameri-First shall pay to or on behalf of
each Indemnified Person contributions for Losses so that each Indemnified Person
ultimately bears only a portion of such Losses as is appropriate to reflect the
relative benefits received by and the relative fault of each such Indemnified
person, respectively, on the one hand and Ameri-First on the other hand in
connection with the transaction; provided, however, that in no event shall the
aggregate contribution of all Indemnified persons to all Losses in connection
with any pursuant to this Agreement. The relative fault of each Indemnified
Person and Ameri-First shall be determined by reference to, among other things,
whether the actions or omissions to act were by such Indemnified Person or the
Fund and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action or omission to act.
Section 8. Confidential Information. In connection with the
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performance of the services hereunder, Flexxtech agrees not to divulge or use
for its own benefit or in violation of Federal Securities Laws, any confidential
information, secret processes or trade secrets disclosed by Ameri-First to it
solely in its capacity as a financial advisor, unless Ameri-First consents to
the divulging thereof or such information, secret processes, or trade secrets
are publicly available or otherwise available to Flexxtech without restriction
or breach of any
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confidentiality agreement or unless required by any governmental authority or in
response to any valid legal process.
Section 9. Governing Law. This Agreement shall be construed,
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interpreted, and enforced in accordance with the laws of the State of Nevada,
excluding any choice-of-law provisions thereof.
Section 10. Assignment. This Agreement and all provisions contained
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herein shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns; provided, however, neither this
Agreement nor any or the rights, interests, or obligations hereunder shall be
assigned by either party without the prior written consent of the other.
Section 11. Independent Contractor. For all purposes of this Agreement,
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Flexxtech shall be an independent contractor and not an employee or dependent
agent of Ameri-First. Except as provided in this Agreement, Flexxtech shall
have no authority to bind, obligate or represent Ameri-First.
Section 12. Amendment. Except as otherwise expressly provided herein,
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this Agreement shall not be amended, nor shall any provision of this Agreement
be considered modified or waived, unless evidenced by a writing signed by the
parties hereto.
Section 13. Termination. The expiration, revocation or termination of
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this Agreement shall not extinguish the obligations of the Company for the
payment of fees and expenses in respect of services for periods prior to the
effective date such expiration, revocation or termination. The indemnification
and contribution obligations of the Company under Section 7 shall survive the
expiration, revocation or termination of this Agreement.
Section 14. Counterpart. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and the signature of any
party to any counterpart shall be deemed a signature to, and may be appended to,
any other counterpart.
Section 15. Other Understanding All discussions, understandings, and
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agreements theretofore made between any of the parties hereto with respect to
the subject matter hereof are merged in this Agreement, which alone fully and
completely expresses the Agreement of the parties hereto.
Section 16. Attorneys Fees. The prevailing party in any dispute
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resulting from this Agreement shall be reimbursed all legal fees, including all
court and other cost, by the defeated party. The defeated party agrees to pay
all legal cost and fees of the prevailing party immediately upon a judgment or
decision being rendered.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FLEXXTECH HOLDINGS, INC.
By:/s/ Greg Mardock
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Name: Greg Mardock
Title: President
AMERI-FIRST FINANCIAL GROUP, INC.
By:/s/ Jeffrey C. Bruteyn
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Name: Jeffrey C. Bruteyn
Title: CEO
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