Consulting Agreement
This Consulting Agreement (the "Agreement") is made and entered into by and
between Funds America Finance Corporation, a Florida corporation (the "Client")
and Equity Growth Systems, inc., a publicly held Delaware corporation with a
class of equity securities registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act" and "Equity," respectively;
the Client and Equity being hereinafter collectively referred to as the
"Parties" and generically as a "Party").
Preamble :
WHEREAS, Client is engaged in the consumer finance industry, as more
particularly described in the materials annexed hereto and made a part hereof as
composite exhibit 0.1; and
WHEREAS, the Client desires to become a reporting company under federal
securities laws with a publicly traded class of securities; and
WHEREAS, Equity personnel have substantial experience with law, accounting
and the regulatory obligations imposed under federal securities laws and
regulations, and provide assistance to companies that desire to attain reporting
status under Section 12(g) of the Exchange Act; and
WHEREAS, Equity is agreeable to making its services available to the
Client, on the terms and subject to the conditions hereinafter set forth:
NOW, THEREFORE, in consideration for Equity's agreement to render the
hereinafter described services as well as of the premises, the sum of $10 and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
Witnesseth:
ARTICLE ONE
OBLIGATIONS OF THE PARTIES
1.1 Description of Services
(A) Equity will assist the Client's legal counsel, or, as set forth below,
provide its own legal counsel, to register its securities with the Securities
and Exchange Commission (the "SEC"), and thereafter, will assist the Client to
make arrangements required to permit trading of the Client's securities on the
OTC Bulletin Board operated by the National Association of Securities Dealers,
Inc., including introductions to one or more potential market makers and
assistance in the preparation, filing and management of the SEC and NASD Rule
15c2-11 compliance filings which will be required by any broker dealers
publishing quotes in the Client's securities.
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(B) Equity will assist the Client to obtain a CUSIP number for its
securities, to obtain a stock trading symbol and to list the Client in a
Standard & Poors or comparable securities manual complying with the manual
exemption from Blue Sky registration in 15 or more states.
(C) Because of the Client's anticipated status under federal securities
laws, in any circumstances where Equity is describing the securities of to a
third Party, Equity shall disclose to such person the compensation received from
the Client to the extent required under any applicable laws, including, without
limitation, Section 17(b) of the Securities Act of 1933, as amended (the
"Securities Act"); however, the Parties acknowledge they do not contemplate that
Equity shall be involved in any activities on behalf of the Client requiring
such descriptions or disclosures, or that the Services involve any activities
subject to regulation under federal or state securities laws, except for the
introduction of the Client and its principals to licensed broker dealers in
securities, securities analysts and appropriate corporate information and
stockholder relations specialists.
1.2 Fiduciary Obligation to Client
In rendering its services, Equity shall not disclose to any third party any
confidential non-public information furnished by the Client or otherwise
obtained by it with respect to the Client.
1.3 Limitations on Services
(A) The Parties recognize that certain responsibilities and obligations are
imposed by federal and state securities laws and by the applicable rules and
regulations of stock exchanges, the National Association of Securities Dealers,
Inc. (collectively with its subsidiaries being hereinafter referred to as the
"NASD"), in-house "due diligence" or "compliance" departments of licensed
securities firms, etc.; accordingly, Equity agrees that it will not release any
information or data about the Client to any selected or limited person(s),
entity, or group if Equity is aware that such information or data has not been
generally released or promulgated.
(B) Equity shall restrict or cease, as directed by the Client, all efforts
on behalf of the Client, including all dissemination of information regarding
the Client, immediately upon receipt of instructions (in writing by fax or
letter) to that effect from the Client.
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1.4 Equity's Compensation
(A) (1) The Client shall issue directly to Equity's stockholders of record on
the 30th day following the date of this agreement, pro rata based on their
ownership of common stock in Equity, a quantity of the Client's common stock
equal to 10% of the Client's total capital stock outstanding immediately
following such issuance, subject to anti- dilutive rights for a period of 12
months following the original date of issuance (the "Public Shares").
(2) The Public Shares shall be issued pursuant to a registration statement
on SEC Form SB-1 or SB-2, or a notification statement pursuant to SEC Regulation
A and Equity will assist the Client to prepare and file required documentation
associated therewith, at the Client's expense.
(3) Prior to the issuance of the Public Shares Equity will assist the
Client to comply with any obligations under SEC Rule 10b-17 pertaining to
dividends.
(4) The Parties hereby agree that for auditing, tax or SEC filing fee
purposes the reasonable market value of the Public Shares is the lesser of
$50,000 or 10% of the Client's stockholders equity.
(B) (1) A. In the event that the Client desires to avail itself of
the legal services of Equity's general counsel to prepare and
file the required SEC registration statements, it will pay such
legal counsel directly the sum of $15,000, plus out of pocket
costs and expenses, provided that not more than four amendments
thereto are required, and that the Client provides timely and
complete assistance in responding to SEC comment letters
(additional costs resulting from failure of such assumptions
being billed at such counsel's normal hourly fees for securities
related filings, such fees currently being $200 per hour).
B. Notwithstanding the foregoing, the Parties currently anticipate
that the Client will retain and use its own securities counsel
for such purposes.
(2) A. Equity believes that the Client will have to pay the following
additional costs in conjunction with the projects contemplated by
this Agreement:
B. Auditing costs, the amount of which the Client is not competent
to determine;
C. The costs of obtaining a CUSIP number and listing with Standard &
Poors or another comparable manual, which is estimated to be
$4,000;
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D. (i) Transfer agent set up and certificate distribution costs
which will vary, based on the agency selected and the initial
services required, but should not exceed $10,000 for physical
delivery of certificates to each stockholder, assuming that such
delivery can be structured over several months.
(ii) In the event that book entry recording in lieu of physical
delivery is a legally available alternative and the costs of
certificates are born by stockholders requesting them, then the
costs can be cut dramatically (in the $5,000 range);
E. Filing fees to the SEC and State regulatory authorities, not
expected to exceed $5,000;
F. Travel, long distance telephone, overnight postage and mailing
expenses, not expected to exceed $2,500.
(C) In addition to the compensation described above with reference to services
during the Initial Term of this Agreement and whether or not the following
services are rendered during such Initial Term (it being the understanding of
the Parties that the Client is not obliged to use Equity for such purposes or
that Equity is required to make such services available):
(1) In the event that Equity arranges or provides funding for the Client on
terms more beneficial than those reflected in Client's current principal
financing agreements, Equity shall be entitled, at its election, to either:
A. A fee equal to 25% of such savings, on a continuing basis; or
B. If equity funding is provided though Equity or any affiliates
thereof, a discount of 10% from the bid price for the subject
equity securities, if they are issuable as free trading
securities, or, a discount of 50% from the bid price for the
subject equity securities, if they are issuable as restricted
securities (as the term restricted is used for purposes of SEC
Rule 144); or
C. If funding is provided by any person or group of persons
introduced to the Client by Equity or persons associated with
Equity, directly or indirectly, but is not provided by Equity or
its principals as described in the preceding sub section, then
Equity shall be entitled to an introduction fee equal to 5% of
the aggregate proceeds so obtained; and
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(2) In the event that Equity generates business for the Client, then, on
any sales resulting therefrom, Equity shall be entitled to a commission equal to
10% of the gross income derived by the Client therefrom, on a continuing basis.
(3) In the event that Equity or any affiliate thereof arranges for an
acquisition of or by the Client, then Equity shall be entitled to compensation
equal to 10% of the compensation paid for such acquisition payable, at the
Client's option, in cash or common stock of the surviving or parent publicly
held entity, in addition to any compensation negotiated and received from the
acquired entity or its affiliates.
(D) The Client will assure that its legal counsel promptly prepares all reports
which then existing holders of the Client's securities (including Equity, its
affiliates and successors in interest) are required to file with the Securities
and Exchange Commission as a result of the Client's reporting status, including
Securities and Exchange Commission Forms 3, 4 and 5, Schedules 13(d) and
Schedules 13(g), and shall submit all such reports to the subject stockholders
for prompt execution and timely filing with the Securities and Exchange
Commission.
(E) (1) In addition to payment of fees, the Client will, provided that it has
requested Equity to provide services for which costs are incurred, be
responsible for payment of all costs and disbursements associated with Equity's
services either:
(a) Involving less than $50 per item and $200 in the aggregate during
the preceding 30 day period; or
(b) Reflected in an operating budget approved by the Client; or
(c) Approved in writing by the Client; provided, however, that the
refusal by the Client to approve expenditures required for the
proper performance of Equity's services will excuse performance
of such services.
(2) All of Equity's statements will be paid within 10 days after receipt.
(3) In the event additional time for payment is required, Equity will have
the option of selling the account receivable and the Client agrees to pay
interest thereon at the monthly rate of 1%.
(4) In the event collection activities are required, the Client agrees to
pay all of Equity's reasonable out of pocket costs associated therewith.
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(5) There will be no change or waiver of the provisions contained herein,
unless such charge is in writing and signed by the Client and Equity.
1.5 Client's Commitments
(A). (1) All work requiring legal review will be submitted for approval by
the Client to the Client's legal counsel prior to its use.
(2) Final drafts of any matters prepared for use by Equity in conjunction
with the provision of the Services will be reviewed by the Client and, if
legally required, by the Client's legal counsel, to assure that:
A. All required information has been provided;
B. All materials are presented accurately; and,
C. That no materials required to render information provided "not
misleading" are omitted.
(3) Only after such review and approval by the Client and, if required, the
Client's legal counsel, will any documents be filed with regulatory agencies or
provided to Equity or third parties.
(4) A. Financial data will be reviewed by competent, independent, certified
public accountants experienced and qualified in securities related accounting
and who are members in good standing of the AICPA's Securities Practice Section,
to be separately retained by the Client.
B. Such accountants will be required to review and approve all financially
related filings, prior to release to Equity, other third parties or submission
to the appropriate regulatory authorities.
(B) (1) The Client shall supply Equity on a regular and timely basis with all
approved data and information about the Client, its management, its products,
and its operations and the Client shall be responsible for advising Equity of
any fact which would affect the accuracy of any prior data and information
supplied to Equity.
(2) The Client shall use its best efforts to promptly supply Equity with
full and complete copies of all filings with all federal and state securities
agencies; with full and complete copies of all shareholder reports and
communications whether or not prepared with Equity's assistance, with all data
and information supplied to any analyst, broker-dealer, market maker, or other
member of the financial community; and with all product/services brochures,
sales materials, etc.
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(3) The Client shall promptly notify Equity of the filing of any
registration statement for the sale of securities and/or of any other event
which triggers any restrictions on disclosure.
(4) The Client shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material, information, and data which it
supplies to Equity and the Client acknowledges its awareness that Equity will
rely on such continuing representation in performing its functions under this
Agreement.
(5) Equity, in the absence of notice in writing from the Client, may rely
on the continuing accuracy of material, information and data supplied by the
Client.
ARTICLE TWO
TERM, RENEWALS & EARLIER TERMINATION
2.1 Term.
This Agreement shall be for an initial term of 180 days, commencing on the
date of its complete execution by all Parties, as evinced in the execution page
hereof, but shall be extended, as required to permit completion of the projects
contemplated hereby (attaining trading status for the Client's securities as an
issuer filing reports with the SEC pursuant to Section 12[g] of the Exchange Act
(the "Initial Term").
2.2 Renewals.
Subject to prior agreement as to additional compensation payable to Equity,
this Agreement shall be renewed automatically, after expiration of the original
term, on a continuing annual basis, unless the Party wishing not to renew this
Agreement provides the other Party with written notice of its election not to
renew ("Termination Election Notice") on or before the 30th day prior to
termination of the then current term.
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2.3 Final Settlement.
(A) Upon termination of this Agreement and payment to Equity of all amounts
due it hereunder, Equity or its representative shall execute and deliver to the
Client a receipt for such sums and a release of all claims, except such claims
as may have been submitted pursuant to the terms of this Agreement and which
remain unpaid, and, shall forthwith tender to the Client all records, manuals
and written procedures, as may be desired by the Client for the continued
conduct of its business; and
(B) The Client or its representative shall execute and deliver to Equity a
receipt for all materials returned and a release of all claims, except such
claims as may have been submitted pursuant to the terms of this Agreement and
which remain unpaid, and, shall forthwith tender to Equity all records, manuals
and written procedures, as may be desired by Equity for the continued conduct of
its business.
ARTICLE THREE
EQUITY'S CONFIDENTIALITY & COMPETITION COVENANTS
3.1 General Provisions.
(A) Equity acknowledges that, in and as a result of its entry into this
Agreement, it will be making use of confidential information of special and
unique nature and value relating to such matters as the Client's trade secrets,
systems, procedures, manuals, confidential reports; consequently, as material
inducement to the entry into this Agreement by the Client, Equity hereby
covenants and agrees that it shall not, at anytime during the term of this
Agreement, any renewals thereof and for two years following the terms of this
Agreement, directly or indirectly, use, divulge or disclose, for any purpose
whatsoever, any of such confidential information which has been obtained by or
disclosed to it as a result of its entry into this Agreement or provision of
services hereunder.
(B) In the event of a breach or threatened breach by Equity of any of the
provisions of this Article Three, the Client, in addition to and not in
limitation of any other rights, remedies or damages available to the Client,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by Equity, or by its partners,
directors, officers, stockholders, agents, representatives, servants, employers,
employees, affiliates and/or any and all persons directly or indirectly acting
for or with it.
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3.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
the Client and its clients as a result of a breach by Equity of the covenants or
agreements contained in this Article Three, and in view of the lack of an
adequate remedy at law to protect the Client's interests, Equity hereby
covenants and agrees that the Client shall have the following additional rights
and remedies in the event of a breach hereof:
(A) Equity hereby consents to the issuance of a permanent injunction
enjoining it from any ▇▇▇▇▇- tions of the covenants set forth in this Article
Three; and
(B) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which the Client or its clients may sustain prior to the
effective enforcement of such injunction, Equity hereby covenants and agrees to
pay over to the Client, in the event it violates the covenants and agreements
contained in this Article Three, the greater of:
(1) Any payment or compensation of any kind received by it because of
such violation before the issuance of such injunction, or
(2) The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered
by the Client or its clients as a result of such violation, the
Parties hereto agreeing that such liquidated damages are not
intended as the exclusive remedy available to the Client for any
breach of the covenants and agreements contained in this Article
Three, prior to the issuance of such injunction, the Parties
recognizing that the only adequate remedy to protect the Client
and its clients from the injury caused by such breaches would be
injunctive relief.
3.3 Cumulative Remedies.
Equity hereby irrevocably agrees that the remedies described in this
Article Three shall be in addition to, and not in limitation of, any of the
rights or remedies to which the Client and its clients are or may be entitled
to, whether at law or in equity, under or pursuant to this Agreement.
3.4 Acknowledgment of Reasonableness.
(A) Equity hereby represents, warrants and acknowledges that its members or
officers and directors have carefully read and considered the provisions of this
Article Three and, having done so, agrees that the restrictions set forth herein
are fair and reasonable and are reasonably required for the protection of the
interests of the Client, its members, officers, directors, consultants, agents
and employees; consequently, in the event that any of the above-described
restrictions shall be held unenforceable by any court of competent jurisdiction,
Equity hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any limitation deemed
unenforceable and, Equity hereby covenants and agrees that if so modified, the
covenants contained in this Article Three shall be as fully enforceable as if
they had been set forth herein directly by the Parties.
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(B) In determining the nature of this limitation, Equity hereby
acknowledges, covenants and agrees that it is the intent of the Parties that a
court adjudicating a dispute arising hereunder recognize that the Parties desire
that these covenants not to compete or circumvent be imposed and maintained to
the greatest extent possible.
3.5 Exclusivity.
Equity shall not be required to devote all of its business time to the
affairs of the Client, rather it shall devote such time as it is reasonably
necessary in light of its other business commitments.
ARTICLE FOUR
CLIENT'S CONFIDENTIALITY & COMPETITION COVENANTS
4.1 General Prohibitions
(A) The Client acknowledges that, in and as a result of its engagement of
Equity, the Client will be making use of confidential information of special and
unique nature and value relating to such matters as Equity's business contacts,
professional advisors, trade secrets, systems, procedures, manuals, confidential
reports, lists of clients, potential customers and funders; consequently, as
material inducement to the entry into this Agreement by Equity, the Client
hereby covenants and agrees that it shall not, at anytime during the term of
this Agreement, any renewals thereof an for two years following the terms of
this Agreement, directly or indirectly, use, divulge or disclose, for any
purpose whatsoever, any of such confidential information which has been obtained
by or disclosed to it as a result of its employment of Equity, or Equity's
affiliates.
(B) In the event of a breach or threatened breach by the Client of any of
the provisions of this Article Four, Equity, in addition to and not in
limitation of any other rights, remedies or damages available to Equity, whether
at law or in equity, shall be entitled to a permanent injunction in order to
prevent or to restrain any such breach by the Client, or by the Client's
partners, directors, officers, stockholders, agents, representatives, servants,
employers, employees, affiliates and/or any and all persons directly or
indirectly acting for or with it.
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4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Equity as a result of a breach by the Client of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Equity's interests, the Client hereby covenants and agrees that
Equity shall have the following additional rights and remedies in the event of a
breach hereof:
(A) The Client hereby consents to the issuance of a permanent injunction
enjoining it from any violations of the covenants set forth in this Article Four
is and
(B) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Equity may sustain prior to the effective
enforcement of such injunction, the Client hereby covenants and agrees to pay
over to Equity, in the event it violates the covenants and agreements contained
in this Article Four, the greater of:
(1) Any payment or compensation of any kind received by it because of
such violation before the issuance of such injunction, or
(2) The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered
by Equity as a result of such violation, the Parties hereto
agreeing that such liquidated damages are not intended as the
exclusive remedy available to Equity for any breach of the
covenants and agreements contained in this Article Four, prior to
the issuance of such injunction, the Parties recognizing that the
only adequate remedy to protect Equity from the injury caused by
such breaches would be injunctive relief.
4.3 Cumulative Remedies.
The Client hereby irrevocably agrees that the remedies described in this
Article Four shall be in addition to, and not in limitation of, any of the
rights or remedies to which Equity is or may be entitled to, whether at law or
in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(A) The Client hereby represents, warrants and acknowledges that its
officers and directors have carefully read and considered the provisions of this
Article Four and, having done so, agree that the restrictions set forth herein
are fair and reasonable and are reasonably required for the protection of the
interests of Equity, its members, officers, directors, consultants, agents and
employees; consequently, in the event that any of the above-described
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restrictions shall be held unenforceable by any court of competent jurisdiction,
the Client hereby covenants, agrees and directs such court to substitute a
reasonable judicially enforceable limitation in place of any limitation deemed
unenforceable and, the Client hereby covenants and agrees that if so modified,
the covenants contained in this Article Four shall be as fully enforceable as if
they had been set forth herein directly by the Parties.
(B) In determining the nature of this limitation, the Client hereby
acknowledges, covenants and agrees that it is the intent of the Parties that a
court adjudicating a dispute hereunder recognize that the Parties desire that
these covenants not to compete or circumvent be imposed and maintained to the
greatest extent possible.
ARTICLE FIVE
MISCELLANEOUS
5.1 Notices.
All notices, demands or other written communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been duly given
on the first business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To Equity:
Equity Growth Systems, inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
with copies to
The Yankee Companies, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇; ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President, and
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and
The Yankee Companies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Administrative Officer
To the Client:
Funds America Finance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇; ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇; and, e-mail
▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇ or at such address, telephone and fax numbers
as are reflected on the SEC's ▇▇▇▇▇ Internet site;
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President & Chief Executive Officer
in each case, with copies to such other address or to such other persons as any
Party shall designate to the others for such purposes in the manner hereinabove
set forth.
5.2 Amendment.
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by Parties.
5.3 Merger.
(A) This instrument, together with the instruments referred to herein,
contains all of the understandings and agreements of the Parties with respect to
the subject matter discussed herein.
(B) All prior agreements whether written or oral are merged herein and
shall be of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
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5.5 Severability.
If any provision or any portion of any provision of this Agreement, other
than a conditions precedent, if any, or the application of such provision or any
portion thereof to any person or circumstance shall be held invalid or
unenforceable, the remaining portions of such provision and the remaining
provisions of this Agreement or the application of such provision or portion of
such provision as is held invalid or unenforceable to persons or circumstances
other than those to which it is held invalid or unenforceable, shall not be
affected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in ▇▇▇▇▇▇ County, Florida.
5.7 Dispute Resolution in lieu of Litigation.
(A) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be ex- clusively resolved through the
following procedures:
(1)(a) First, the issue shall be submitted to mediation before a
mediation service in Palm Beach County, Florida to be selected by
lot from six alternatives to be provided, three by Equity and
three by the Client.
(b) The mediation efforts shall be concluded within ten business days
after their initiation unless the Parties unanimously agree to an
extended mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute then at the request of any Party, the Parties shall
submit the dispute to binding arbitration before an arbitration
service located in Palm Beach County, Florida, to be selected by
lot, from six alternatives to be provided, in the manner set
forth above for selection of a mediator;
(3) (A) Expenses of mediation shall be borne by the Parties equally
if successful but if unsuccessful, expenses of mediation and of
arbitration shall be borne by the Party or Parties against whom
the arbitration decision is rendered.
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(B) If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and
arbitration shall be borne ½ by the Client and ½ by
Equity.
(B) Judgment upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof.
(C) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated. 5.8 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, jointly and severally, their successors, assigns,
personal representatives, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed, acknowledged or delivered and to perform all such acts and
deliver all such deeds, assignments, transfers, conveyances, powers of attorney,
assurances, stock certificates and other documents, as may, from time to time,
be required herein to effect the intent and purpose of this Agreement.
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5.12 Status.
(A) Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship.
(B) Throughout the term of this Agreement, Equity shall serve an
independent contractor, as that term is defined by the United States Internal
Revenue Service, and in conjunction therewith, shall be responsible for all of
his own tax reporting and payment obligations.
(C) In amplification of the foregoing, Equity shall, subject to reasonable
reimbursement on a pre-approved budgetary basis, be responsible for providing
its own office facilities and supporting personnel.
5.13 Counterparts.
(A) This Agreement may be executed in any number of counterparts delivered
through facsimile transmission.
(B) All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
5.14 License.
(A) (1) This Agreement is the property of The Yankee Companies, Inc.,
a Florida corporation which serves as a strategic consultant to
Equity ("Yankees").
(2) The use hereof by the Parties is authorized hereby solely for
purposes of this transaction and, the use of this form of
agreement or of any derivation thereof without Yankees' prior
written permission is prohibited.
(3) This Agreement shall not be construed more stringently or
interpreted less favorably against Equity based on authorship.
(B) The Client hereby acknowledge that neither Yankees nor Equity is a law
firm and that neither provided it with any advice, legal or otherwise, in
conjunction with this Agreement, but rather, has suggested that it rely solely
on its own experience and advisors in evaluating or interpreting this Agreement
and that the Client has confirmed that this Agreement and any forms of
agreements or legal instruments provided to the Client by Yankees or Equity
shall be reviewed by the Client's legal counsel prior to use thereof.
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In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
Funds America Finance Corporation
----------------------------
____________________________ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
Dated: May 7, 1999
Attest: /s/ ▇▇▇▇ ▇▇▇▇▇ /s/
▇▇▇▇ ▇▇▇▇▇, Secretary
{Seal}
Equity Growth Systems, inc.
----------------------------
____________________________ By: /s/ ▇▇▇▇▇▇▇ J, ▇▇▇▇▇▇▇ /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Dated: May 18, 1999
Attest: /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Secretary
{Seal}
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