Consulting Agreement - Cruttenden Roth Inc. and Netgateway Inc.
CRUTTENDEN ROTH INCORPORATED
24 CORPORATE PLAZA
NEWPORT BEACH, CALIFORNIA 92660
CONSULTING AGREEMENT
______, 1999
Netgateway, Inc.
300 Oceangate, Suite 500
Long Beach, California 90802
Attn: Mr. Keith Freadhoff
Chairman of the Board and Chief Executive Officer
Dear Sirs:
This will confirm the arrangements, terms and conditions pursuant to
which Cruttenden Roth Incorporated (the "Consultant") has been retained to serve
as consultant and advisor to Netgateway, Inc., a Delaware corporation (the
"Company"'), for the term set forth in Section 3 below. The undersigned hereby
agree to the following terms and conditions:
1. ENGAGEMENT. The Company hereby retains the Consultant to
perform consulting and advisory services, and the Consultant hereby accepts such
retention and agrees to do and perform consulting and advisory services, upon
the terms and conditions set forth herein.
2. DUTIES OF THE CONSULTANT.
(a) CONSULTING SERVICES. The Consultant will
provide such general financial consulting services and advice pertaining to the
Company's business affairs (as further set forth below), as and when the Company
may from time to time reasonably request upon reasonable notice. Without
limiting the generality of the foregoing, the Consultant will assist the Company
in developing, studying and evaluating financing and capital structure, mergers
and acquisitions activity and corporate financing proposals, prepare reports and
studies thereon when advisable, and assist in negotiations and discussions
pertaining thereto.
(b) FINANCING. The Consultant will assist and
represent the Company in obtaining both short and long-term financing, when so
requested by the Company in the Company's sole discretion. The Consultant will
be entitled to additional compensation under such terms as may be agreed to by
the parties in connection therewith.
(c)
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WALL STREET LIAISON. The Consultant will, when appropriate, arrange meetings
between representatives of the Company and individuals and financial
institutions in the investment community, such as security analysts, portfolio
managers and market makers.
The services described in this Section 2 shall be rendered by the
Consultant in consultation with the Company at such time and place and in such
manner (whether by conference, telephone, letter or otherwise) as the Consultant
and the Company may reasonably determine.
3. TERM. The term of this Agreement shall commence on the date
hereof and continue for a period of two years from the date hereof (the "Term").
4. COMPENSATION. As compensation in full for the Consultant's
services hereunder during the Term, the Company shall pay to the Consultant the
sum of $______, which amount shall be paid at the closing of the public offering
contemplated by the Underwriting Agreement, dated _______, 1999, between the
Company and the Consultant, as representative of the Underwriters identified
therein.
5. EXPENSES. The Company shall pay and reimburse the
Consultant for all reasonable out-of-pocket expenses incurred by the Consultant
and approved in advance in writing by the Company in the performance of its
services under this Agreement.
6. RELATIONSHIP. Nothing herein shall constitute the
Consultant as an employee or agent of the Company. Except as might hereinafter
be expressly agreed, the Consultant shall not have the authority to obligate or
commit the Company in any manner whatsoever.
7. CONFIDENTIALITY. Except in the course of the performance of
its duties hereunder, and in such case, only upon express written consent of the
Company, the Consultant agrees that it shall not disclose any trade secrets,
know-how, or other proprietary information not in the public domain learned as a
result of this Agreement unless and until such information becomes generally
known or is in the public domain.
8. FINDER'S OR BROKER'S FEES. The Company acknowledges and
agrees that, with the written agreement and at the request of the Company, the
Consultant may act as a finder or financial consultant in various business
transactions in which the Company or any of its subsidiaries may be involved,
such as mergers, acquisitions, joint ventures or investments and that the
Consultant may be entitled to receive a finder's fee or brokerage commission or
other rights, profits or payments in connection with such transactions provided,
however, that the Company and the Consultant have entered into an agreement
prior thereto regarding the services to be performed by and the fee to be paid
to the Consultant.
9. PERMITTED ACTIVITIES. Nothing contained in this Agreement
shall limit or restrict the right of the Consultant or of any officer, director,
shareholder, employee, agent or representative of the Consultant to be a
partner, owner, director, officer, employee, agent or
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representative of, or engage in, any other business, whether of a similar
nature or not, or limit or restrict the right of the Consultant to render
services of any kind to any other corporation, firm, individual or other
entity.
10. ASSIGNMENT AND TERMINATION. This Agreement shall not be
assignable by any party except to a successor to all or substantially all of the
business of either party without the prior written consent of the other party,
which consent may be arbitrarily withheld by the party whose consent is
required.
11. NOTICES. All notices hereunder shall be in writing and
shall be validly given, made or served if in writing and delivered in person or
when received by facsimile transmission, or five days after being sent first
class certified or registered mail, postage prepaid or one day after being sent
by nationally recognized overnight courier to the party for whom intended at the
addresses as set forth above or at such other address as may be provided.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION. This agreement
shall be interpreted, construed, governed and enforced according to the laws of
the State of California without giving effect to the conflicts of law rules
thereof. The Company and the Consultant hereby agree that any action, proceeding
or claim against it arising out of, or relating in any way to, this Agreement
shall be brought and enforced in the courts of the State of California or of the
United States of America in California, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company and the
Consultant hereby irrevocably waive any objection to such exclusive jurisdiction
or inconvenient forum and also hereby irrevocably waive any right or claim to
trial by jury in connection with any such action, proceeding or claim.
13. AMENDMENTS. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and signed by the
parties hereto.
14. INDEMNIFICATION. As a consultant for the Company, the
Consultant must at times rely upon the information supplied to the Consultant by
the Company's officers, directors, agents and employees as to accuracy and
completeness. Therefore, the Company agrees to indemnify, hold harmless and
defend the Consultant, its directors, officers, employees and agents from and
against any and all claims, actions, proceedings, losses, liabilities, costs and
expenses (including without limitation, reasonable attorneys' fees) incurred by
any of them in connection with or as a result of any inaccuracy, incompleteness
or omission of information given to the Consultant in writing by the Company's
officers, directors, agents or employees in connection with the rendering of
services by the Consultant requested by the Company hereunder.
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15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts which, taken together, shall constitute one and the same
instrument, and this Agreement shall become effective when one or more
counterparts have been signed by each of the parties. It shall not be necessary
in making proof of this Agreement or any counterpart hereof to account for more
than one such counterpart.
Very truly yours,
CRUTTENDEN ROTH INCORPORATED
By:
Name:
Title:
AGREED AND ACCEPTED:
NETGATEWAY, INC.
By:
Keith Freadhoff
Chairman of the Board, President and
Chief Executive Officer