EXHIBIT 10.19
ADVISORY SERVICE AGREEMENT
THIS ADVISORY SERVICE AGREEMENT (the "Agreement") is made this 4th day of
April 2000 by and between CUIDAO HOLDING CORPORATION, a Florida corporation (the
"Company") and ST. MARTIN EQUITY GROUP INC. a Bahamian Corporation (the
"Advisor").
WHEREAS, Advisor and Advisor's personnel have experience in advising
corporate management, strategic planning, corporate development, financial
accounting and forcecasting, marketing, structuring investor relations programs,
contract negotiations and performing general administrative duties for publicly
- -held companies and development stage investment ventures relative to European
Markets; and
WHEREAS, the Company desires to retain Advisor to advise and assist the
Company in its development in Europe on the terms and conditions set forth
herein.
NOW THEREFORE in consideration of the mutual promises and conditions set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. Engagement. The Company hereby engages Advisor as of the date hereof and
continuing until the termination as provided herein to provide or assist the
Company with the following: review of existing financial reporting system and
provide a fully-automated accounting system which will grow with the Company;
attend e-commerce and other beverage industry conferences and advise the Company
on trends and strategies for the beverage industry; provide a fully-developed
e-commerce website for the Company; negotiate or assist in the negotiation of
source, distribution and marketing agreements; evaluate prospective
distributors;
negotiate and evaluate potential distributor acquisitions; structure and
negotiate financing with investors secured by the Company; assist in the
preparation and completion of all Securities and Exchange Commission ("SEC)
filings, including annual and quarterly reports, registration statements and any
other SEC filings; assist in the preparation and completion of all press release
and investor relations communications; assist in the preparation and completion
of a business plan and marketing strategy; negotiate and structure asset
acquisitions relative to the Company's growth; provide strategic planning and
long term financial models for the growth of the Company; consult with the
Company on general business and financial issues; design and arrange public and
investor relations agreements for the Company; and oversee the financial
operations of the Company during its development stage (collectively the
"Services"). All Services to be completed hereunder shall be apply to Services
relative to Europe and the European market only.
2. Term. Unless sooner terminated in accordance with the termination provisions
set forth in this Agreement, the term of this Agreement shall be for an initial
term of six (6) months commencing on the date hereof (the "Initial Term"), and
shall be automatically renewed for an additional term of six (6) months, unless
at least thirty (30) days prior to the end of the Initial Term either party
shall advised the other of its desire to terminate this Agreement (the
"Additional Term")
3. Time, Effort and Estimate Value of Advisor Services. Advisor shall allocate
such time and assign such of Advisor's personnel as it deems necessary to
complete the Services to be provided under this Agreement. It is expressly
understood that the amount of time may vary from day to day and from week to
week. Advisor estimates that the Services it will render during the Initial Term
shall have an approximate value of $150,000 and that this value is
comparable to what the Company would pay for like services from any independent
provider of such services. Further, Advisor estimates that its services during
the Additional Period shall have a like value. The Company agrees to provide any
and all information and or documents reasonably requested by Advisor and/or
Advisor's personnel to assist in the performance of the Services required
hereunder.
4. Limitations of Advisors Liability. In the absence of willful malfeasance, bad
faith, negligence, or reckless disregard for the obligations and duties
hereunder by Advisor, neither Advisor nor Advisor's personnel shall be liable to
the Company or any of its subsidiaries, officers, directors or 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 undertaken by the Company as a result of
advice provided by Advisor or Advisor's personnel.
5. Advisory Services Compensation. The Company shall pay to Advisor as
compensation for the Services under this Agreement during the Initial Terms by
way of delivery by the Company of one hundred fifty thousand (150,000) shares of
registered stock contemporaneously with the effectiveness of a Form S-8
registration statement registering shares for use as employee or consultant
compensation. In addition, unless notice is provided by any party thirty (30)
days prior to the expiration of the Initial Term, the Company shall pay to
Advisor one hundred thousand Form S-8 shares prior to the commencement of the
Additional Term. All shares shall be deemed fully earned and non-assessable as
of the date hereof. The parties acknowledge that for the thirty (30) day period
preceding this Agreement, the Company's common stock has had a closing price of
not more than $1 on any day reported on the OTC Bulletin Board during that
period. The shares to be issued hereunder shall be registered in the name of Dan
Campbell, who
is neither a shareholder, officer or director, either directly or indirectly, in
Advisor, who shall be the Advisor personnel principally charged with performing
or overseeing the performance of the Services to be provided under this
Agreement.
6. Costs and Expenses. All time charges, out of pocket costs and third party
expenses incurred by Advisor in performance of the Services up to an amount
equal to $150,000 during the Initial Term and up to $100,000 during the
Additional Term shall be borne by Advisor. All third party costs and out of
pocket expenses incurred by Advisor in excess of these amounts shall be
reimbursed to Advisor within ten (10) days of presentation of written notice to
the Company. During the Initial Term and Additional Term, Advisor shall provide
the Company with quarterly statements of the time, costs and out of pocket
expenses incurred in performance of the Services.
7.` Place of Services. The Services to be provided hereinunder shall be
performed in such place as Advisor, in its sole discretion, deems is the best
location for such Services and may include, but not be limited to Advisor's
offices, the Company's offices or such other location as required for the
particular service to be performed.
8. Independent Contractor. Advisor and Advisor's personnel will act as
independent contractors in the performance of the Services 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 and 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
opportunity introduced by Advisor, and to make all final decisions with respect
to whether or not to accept or reject any business opportunity suggested or
introduced by Advisor or Advisor's personnel.
9. Rejected Asset Opportunity or Business Opportunity. If, during the Initial
Term of this Agreement or the Additional Term, the Company elects not to proceed
to acquire, participate or invest in any business opportunity identified and/or
selected by Advisor or Advisor's personnel, 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.
10. 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 and Advisor's personnel and the
Company.
11. Termination. The Company and Advisor may terminate this Agreement at any
time with mutual consent and either party name give notice of termination thirty
(30) days prior to the Additional Term. Failing such 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.
(1) if during the Initial Term of this Agreement or the Additional
Term,
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,
(2) If Advisor willfully breaches or neglects the duties required to
be performed hereunder.
(B) By Advisor.
(1) If the Company breaches this Agreement or fails to make any
payments or provide information or documents required hereunder; or,
(2) If the Company ceases business or 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,
(3) If the Company subsequent to the execution hereof 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
its business; or
(4) If the Company subsequent to the execution hereof institutes,
makes a general assignment for the benefit of creditors, has
instituted against it any bankruptcy proceeding for reorganization or
rearrangement of its financial affairs, files a petition in a court of
bankruptcy, or is adjudicated a bankrupt; or,
(5) If any of the disclosures made herein or subsequent hereto by the
Company to Advisor are determined to be materially false or
misleading. In the event either party elects to terminate for cause or
this Agreement is terminated prior to the expiration of the Initial
Term or if this Agreement is terminated by mutual written agreement,
the Company shall be responsible to pay Advisor for unreimbursed
expenses due hereunder. In the
event the Company terminates this Agreement pursuant to subparagraphs
A(1) or (a)(2), Advisor shall provide the Company with a full
accounting of all costs and expenses and reimburse the Company during
the Initial Term for $150,000 less the costs and expenses of Advisor
and during the Additional Term for $100,000 less costs and expenses.
12. 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 attorney's 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.
13. Remedies. Any and all remedies available hereunder shall be cumulative and
nonexclusive and shall be in addition to any other remedy to which the
parties may be entitled.
14. 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 that 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 as may be reasonably necessary to effectuate the purpose 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 provision 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 noncompliance with this Agreement shall be held to be a waiver of any other
or subsequent breach or noncompliance.
(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 mail for transmittal by certified or registered mail, postage
prepaid, or when deposited with a recognized courier service for transmittal, or
when sent by facsimile transmission and such transmission is evidenced by log as
satisfactorily transmitted, and in each case provided that the communication is
addressed:
(1) In the case of the Advisor:
St. Martin Equity Group, Inc.
c/o Suisse Security
Orissa House
East Bay Street
PO B0X N-4801
Nassau, Bahamas
Telefax: (242) 394-0992
Attention: E. Cassey
(2) In the case of Company: Cuidao Holding Corporation
2951 Simms Street
Hollywood, Florida 33020-1510
Telephone: (954) 924-0047
Telefax: (954) 924-8171
Attention: Robert Walker or
C. Michael Fisher
or to such other person or address designated in writing by the Company or
Advisor to receive notice and served on the other party in accordance with this
section.
(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 Florida, and shall be governed by the laws of the State of Florida. The
parties expressly agree to venue in Broward County, Florida for any and all
actions commenced relative to this Agreement.
(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.
(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. The executed copy of this Agreement shall be valid
and binding upon a party when transmitted by facsimile to the other party. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
St. Martin Equity Group, Inc. Cuidao Holding Corporation
By:____________________ By:________________________________
E. Cassey Robert Walker, Managing Director
Authorized Signatory
By:________________________________
C. Michael Fisher, President