Consulting and Advisory Agreement - Burchmont Equities Group Inc. and Netgateway Inc.
CONSULTING AND ADVISORY AGREEMENT
This Consulting and Advisory Agreement ("Agreement") is made and entered as of
this 20th day of October, 1998, and between BURCHMONT EQUITIES GROUP INC., (or
"BMEG") and Netgateway, Inc. (or "NGWY")
Recitals
A. BMEG is experienced as a consultant and advisor in the securities
industry. BMEG has played a key role in assisting in the dissemination of
information of certain publicly traded companies and providing the
necessary strategy for growth of the public awareness within the companies
where it has been retained. BMEG is also experienced in dealing with
brokers, NASD broker/dealers, financial institutions, and equity investors
as it pertains to the securities transactions and in corporate finance in
the securities industry.
B. BMEG is experienced at making presentations to the brokerage community in
addition to providing market analysts and NASD broker/dealer interviews
concerning the energy industry and the current activities of the
company's wherein he has been contracted as an advisor.
C. NGWY desires to publicize itself with the intention of making its name and
business better known to shareholders, investors, and the financial
communities and to avail itself of BMEG's experience, advice and contacts
within these communities. NGWY desires to enter into this Agreement with
BMEG and BMEG is willing to provide consulting and advisory services to
NGWY under the following terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein and for good valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Engagements. NGWY hereby retains BMEG to present the Company to
institutions, broker/dealers and prospective investors and shareholders.
BMEG hereby agrees to make itself available to render its professional
advise and reasonable assistance to NGWY and NGWY's Board of Directors
under the terms and conditions herein set forth.
2. Duties. During the term of this Agreement, BMEG agrees to assist and
advise NGWY in the following areas; however it is understood by the
parties hereto that BMEG will only play an active role in day to day
operations if requested to do so:
a) Assist in the dissemination of information concerning Netgateway
Inc.;
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b) Interview and source qualified investment opportunities to be
presented to the board of directors.
c) Assist in the presentation of due diligence material included in
investment memoranda and other similar matters as may be required by
industry partners, bankers, financial institutions, NASD
broker/dealers, securities analysts and equity investors;
d) Such other general assistance and advice as may be mutually agreed
upon.
3. Compensation. In exchange for the services to be rendered hereunder, BMEG
will be compensated as follows:
a) For promotional services:
1) 100,000 shares of restricted Rule 144 common stock, subject to
piggyback registration rights deliverable in seven (7) days.
2) 300,000 stock options at a strike price of $1.50 per share.
b) The compensation for promotional services will only vest upon the
happening of all of the following events:
(i) NGWY becomes listed on the NASDAQ Small Cap Market;
(ii) NGWY files an effective S-1 Registration statement for its
existing shares, including the shares governed hereunder;
(iii) NGWY files a Form 10 and becomes a 12(g) reporting company;
and
c) NGWY also agrees to pay compensation not to exceed 10% of the gross
proceeds raised by BMEG on behalf of the Company, whether raised
through loans, direct equity lending or other negotiated financial
instruments.
4. Term. This agreement shall be for a term of twelve (12) months, provided,
however, that after the initial sixty (60) days, NGWY may terminate this
agreement upon thirty (30) days prior written notice.
5. Accuracy Information and Indemnification. NGWY agrees to furnish to BMEG
truthful and accurate information in all respects. NGWY agrees to
cooperate with BMEG in the performance of BMEG's consulting services and
experience. Any written materials generated by BMEG concerning NGWY for
distribution must be reviewed prior to and approved in writing by NGWY
before distribution.
6. Miscellaneous.
a) Assignability. Unless otherwise agreed to in writing by both
parties hereto, the rights, obligations and benefits established by
this Agreement shall be nonassignable by either of the parties
hereto and any such attempt of assignment shall be null and void and
of no effect whatsoever.
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b) Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof, and may not
be changed except by a writing signed by the party against whom
enforced or discharged is sought.
c) Waiver of Breach. The waiver by either party of a breach of any
position of this agreement by the other shall not operate or be
construed as a waiver of any subsequent breach by the other party.
d) Construction of Language. The language used in this Agreement shall
be construed as a whole according to its fair meaning, and not
strictly for nor against either party.
e) Captions and Headings. The paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no
way be deemed to define, limit or add to the meaning of any
provision of the Agreement.
f) State of Law. This Agreement, its interpretation, and its
application shall be governed by the laws of the State of Nevada.
g) Counterpart. This agreement may be executed in several counterparts,
each of which shall be an original, and such counterparts shall
together constitute one and the same instrument.
h) Costs. In the event of any legal proceedings between any of the
parties to enforce or defend the terms and rights set forth in this
Agreement, the prevailing party or parties shall be paid all costs
of such legal proceeding, including but not limited to, attorney
fees by the other party.
IN WITNESS THEREOF, the parties have executed this agreement to be effective as
of the day and the year first mentioned above written notwithstanding the actual
date of signatures.
BURCHMONT EQUITIES GROUP, INC.
By: /s/ Dean S. Dumont
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Dean S. Dumont
Title: President
Netgateway Inc.
By: /s/ Keith D. Freadhoff
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Keith D. Freadhoff
Title: CEO