Unassociated Document


    

      Exhibit
        10.2

      


      


      ADVISORY
        SERVICES AGREEMENT

      


      


      This
        Advisory Services Agreement (the “Agreement”) is entered into this 18th day of
        July, 2005 by and between Ascendiant Capital Group LLC (hereinafter referred
        to
        as “Consultant”) and SmartVideo Technologies, Inc. (hereinafter referred to as
“Client” or “Company”), collectively referred to as the “Parties,” with
        reference to the following terms:

      


      Preliminary
        Statement: The
        Client desires to be assured of the association and services of the Consultant
        in order to avail itself of the Consultant's experience, skills, abilities,
        knowledge, and background to facilitate strategic and financial development,
        and
        to advise the Client in business and financial matters, and is therefore
        willing
        to engage Consultant upon the terms and conditions set forth herein. Consultant
        desires to be assured, and Client desires to assure Consultant, that Consultant
        will be paid the consideration described herein and said consideration once
        paid
        will be nonrefundable, regardless of the circumstances. 

      


      Consultant
        agrees to be engaged and retained by Client upon the terms and conditions
        set
        forth herein.

      


      NOW,
        THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter
        set forth and for other good and valuable consideration, the receipt and
        sufficiency of which are hereby acknowledged, the Parties hereto agree as
        follows:

      


      
        	
                1.

              	
                Engagement.
                  Client hereby engages Consultant and Consultant hereby accept the
                  engagement to become Consultant to Client and, as requested and
                  applicable, to render such assistance, advice, consultation, information,
                  and services to the Officers and/or Directors of Client regarding
                  general
                  business matters including, but not limited to the following: Business
                  Strategy, Strategic Alliances, Mergers and Acquisitions, Stock
                  Option
                  Plans, Corporate Governance, and analysis regarding Qualification
                  for
                  National Stock Exchanges.

              


      

       

      
        	 	
                1.1.

              	
                Additional
                  Duties.
                  Client and Consultant shall mutually agree, in writing, for any
                  additional
                  duties that Consultant may provide to Client for compensation paid
                  or
                  payable by Client under this Agreement. Although there is no requirement
                  to do so, such additional agreement(s) may be attached hereto and
                  made a
                  part hereof by written amendments to be listed as "Exhibits" beginning
                  with "Exhibit A" and initialed by both
                  parties.

              


      

      


      
        	 	
                1.2.

              	
                Standard
                  of Performance.
                  Consultant shall devote such time and efforts to the affairs of
                  the Client
                  as is reasonably necessary to render the services contemplated
                  by this
                  Agreement. Any work or task of Consultant provided for herein which
                  requires Client to provide certain information to assist Consultant
                  in
                  completion of the work shall be excused (without effect upon any
                  obligation of Client) until such time as Client has fully provided
                  all
                  information and cooperation necessary for Consultant to complete
                  the work.
                  The services of Consultant shall not include the rendering of any
                  legal
                  opinions or the performance of any work that is in the ordinary
                  purview of
                  a certified public accountant, or other licensed professional.
                  Consultant
                  shall not make
                  a market in Client’s securities, engage in stock promotion, or be part of
                  a capital raising transaction. Consultant
                  cannot guarantee results on behalf of Client, but shall use commercially
                  reasonable efforts in providing the services listed
                  above.

              


      

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      
        	
                2.

              	
                Compensation
                  to Consultant. The
                  engagement compensation to Consultant shall be 750,000 shares of
                  Client’s
                  restricted common stock, par value $.001, with piggyback registration
                  rights. The engagement compensation shall be delivered to Consultant
                  within five (5) days of the signing of this Agreement. Note:
                  Consultant shall have no obligation to perform
                  any duties provided for herein if full payment is not received
                  within the
                  time described
                  herein this Section 2. Furthermore, once paid, said engagement
                  fee
                  is nonrefundable
                  regardless of the
                  circumstances.

              


      

      


      
        	 	
                2.1.

              	
                Expenses.
                  If
                  the Client requests that Consultant travel outside of Southern
                  California
                  to perform the services described herein, Client shall reimburse
                  Consultant for travel-related expenses and payment shall be made
                  within
                  seven (7) days of invoice. Notwithstanding the foregoing, all such
                  expenses over $500 shall be pre-approved by the Client prior to
                  being
                  incurred. 

              


      

      


      
        	 	
                2.2.

              	
                Additional
                  Fees.
                  Client and Consultant shall mutually agree upon any additional
                  fees that
                  Client may pay in the future for services rendered by Consultant
                  under
                  this Agreement. Such additional agreement(s) may, although there
                  is no
                  requirement to do so, be attached hereto and made a part hereof
                  as
                  Exhibits beginning with Exhibit A.

              


      

      


      
        	 	
                2.3.

              	
                Term/Termination. This
                  Agreement shall be in effect for six (6) months from the date of
                  the
                  Agreement. Additional extensions may be negotiated as necessary
                  at the
                  mutual written consent of the Client and
                  Consultant.

              


      

      


      
        	
                3.

              	
                Mergers
                  and Acquisitions.
                  Consultant will provide assistance to Client, as mutually agreed,
                  in
                  introducing and/or assisting Client in identifying, acquiring,
                  merging,
                  and/or divesting on a non-exclusive basis, assisting in due-diligence,
                  recommending transaction terms and providing advice and assistance
                  during
                  negotiations, as needed. It is expressly understood that Consultant
                  shall
                  have no power to bind Client to any contract or transaction obligation.
                  

              


      

      


      If
        requested by Client in writing, Consultant will assist the Client with one
        or
        more parties who might be interested in (whether by way of merger,
        consolidation, asset purchase, technology license, or substantially similar
        transaction) either, (a) acquiring some or all of Client’s assets or, (b)
        selling some or all of their own assets to Client and/or, (c) entering into
        some
        form of strategic alliance with Client. In consideration of Consultant’s
        services, Client agrees to pay Consultant ten percent (10 %) of the value
        of the
        transaction in the same ratio of cash and / or stock as the transaction.
“Total
        value” shall include, but is not limited to cash, cash equivalents, stock, and
        the value of any consideration other than cash paid or received by Client.
        Should the transaction be with a party identified and introduced by Client,
        Client agrees to pay Consultant five percent (5%) of the total value of the
        transaction. For consultant to receive such compensation, Consultant and
        Client
        shall agree in writing to each merger and/or acquisition assignment(s) and
        related compensation due and payable to Consultant resulting from the successful
        completion of such transaction(s). Additionally,
        Client and Consultant agree that for any pre-existing initiatives relating
        to
        mergers and acquisitions, compensation arrangements will be negotiated
        separately and will be agreed to in writing by the Parties.

      


      
        	
                4.

              	
                Mutual
                  Indemnification.
                  Either Party agrees to indemnify and hold harmless the other against
                  any
                  and all liability, loss and costs, expenses or damages, including
                  but not
                  limited to, any and all expenses whatsoever reasonably incurred
                  in
                  investigating, preparing or defending against any litigation, commenced
                  or
                  threatened, or any claim whatsoever or howsoever caused by reason
                  of any
                  injury (whether to body, property, personal or business character
                  or
                  reputation) sustained by any person or to any person or property,
                  arising
                  out of any act, failure to act, neglect, any untrue or alleged
                  untrue
                  statement of a material fact or failure to state a material fact
                  which
                  thereby makes a statement false or misleading, or any breach of
                  any
                  material representation, warranty or covenant by either Party or
                  any of
                  its agents, employees, or other representatives. Nothing herein
                  is
                  intended to nor shall it relieve either party from liability for
                  its own
                  willful act, omission or negligence. All remedies provided by law,
                  or in
                  equity shall be cumulative and not in the
                  alternative.

              


      

      


      
        
          
          

        

        
           

          
            

          

        

        
          
          

        

         

      

      
        	
                5.

              	
                Mutual
                  Confidentiality.
                  Consultant and Client each agree to keep confidential and provide
                  reasonable security measures to keep confidential information where
                  release may be detrimental to their respective business interests.
                  Consultant and Client shall each require their employees, agents,
                  affiliates, other licensees, and others who will have access to
                  the
                  information through Consultant and Client respectively, to first
                  enter
                  appropriate non-disclosure Agreements requiring the confidentiality
                  contemplated by this Agreement in perpetuity. Consultant will not,
                  either
                  during its engagement by the Client pursuant to this Agreement
                  or at any
                  time thereafter, disclose, use or make known for its or another's
                  benefit
                  any confidential information, knowledge, or data of the Client
                  or any of
                  its affiliates in any way acquired or used by Consultant during
                  its
                  engagement by the Client. Confidential information, knowledge or
                  data of
                  the Client and its affiliates shall not include any information
                  that is,
                  or becomes generally available to the public other than as a result
                  of a
                  disclosure by Consultant or their
                  representatives.

              


      

      


      
        	
                6.

              	
                Amendments
                  and Modification.
                  This Agreement may be amended, modified and supplemented only by
                  written
                  agreement of Consultant and Client.

              


      

      


      
        	 	
                6.1

              	
                Assignment.
                  This Agreement and all of the provisions hereof shall be binding
                  upon and
                  inure to the benefit of the parties hereto and their respective
                  successors
                  and permitted assigns. The obligations of either party hereunder
                  cannot be
                  assigned without the express written consent of the other
                  party.

              


      

      


      
        	 	
                6.2

              	
                Governing
                  Law; Venue.
                  This Agreement and the legal relations among the parties hereto
                  shall be
                  governed by and construed in accordance with the laws of the State
                  of
                  California, without regard to its conflict of law doctrine. Client
                  and
                  Consultant agree that if any action is instituted to enforce or
                  interpret
                  any provision of this Agreement, the jurisdiction and venue shall
                  be
                  Orange County, California.

              


      

      


      
        	 	
                6.3

              	
                Attorneys'
                  Fees and Costs.
                  If
                  any action is necessary to enforce and collect upon the terms of
                  this
                  Agreement, the prevailing party shall be entitled to reasonable
                  attorneys’
                  fees and costs, in addition to any other relief to which that party
                  may be
                  entitled. This provision shall be construed as applicable to the
                  entire
                  Agreement.

              


      

      


      
        	 	
                6.4

              	
                Survivability.
                  If
                  any part of this Agreement is found, or deemed by a court of competent
                  jurisdiction, to be invalid or unenforceable, that part shall be
                  severable
                  from the remainder of the
                  Agreement.

              


      

      


      
        	 	
                6.5

              	
                Facsimile
                  Signatures.
                  The Parties hereto agree that facsimile signatures may execute
                  this
                  Agreement and such signature shall be deemed originals.
                  

              


      

      


      
        	
                7

              	
                Arbitration. All
                  disputes, controversies, or differences between client, consultant,
                  or any
                  of their officers, directors, legal representatives, attorneys,
                  accountants, agents or employees, or any customer or other person
                  or
                  entity, arising out of, in connection with or as a result of this
                  agreement, shall be resolved through arbitration rather than through
                  litigation. With respect to the arbitration of any dispute, the
                  undersigned hereby acknowledge and agree
                  that:

              


      

      


      
        	 	
                A.

              	
                Arbitration
                  is final and binding on the
                  parties;

              


      

      
        	 	
                B.

              	
                The
                  parties waive their right to seek remedy in court, including their
                  right
                  to jury trial;

              


      

      
        	 	
                C.

              	
                Pre-arbitration
                  discovery is generally more limited and different from court
                  proceeding;

              


      

      
        	 	
                D.

              	
                The
                  arbitrator’s award is not required to include factual findings or legal
                  reasoning and any party’s right of appeal or to seek modification of
                  ruling by the arbitrators is strictly
                  limited;

              


      

      
        	 	
                E.

              	
                This
                  arbitration provision is specifically intended to include any and
                  all
                  statutory claims which might be asserted by any
                  party;

              


      

       

      
        
          
          

        

        
           

          
            

          

        

        
          
          

        

         

      

      
        	 	
                F.

              	
                Each
                  party hereby agrees to submit the dispute for resolution to the
                  American
                  Arbitration Association in Orange County, California within five
                  (5) days
                  after receiving a written request to do so from the other
                  party;

              


      

      
        	 	
                G.

              	
                If
                  either party fails to submit the dispute to arbitration on request,
                  then
                  the requesting party may commence an arbitration proceeding, but
                  is under
                  no obligation to do so;

              


      

      
        	 	
                H.

              	
                Any
                  hearing scheduled after an arbitration is initialed shall take
                  place in
                  Orange County, California;

              


      

      
        	 	
                I.

              	
                If
                  either party shall institute a court proceeding in an effort to
                  resist
                  arbitration and be unsuccessful in resisting arbitration or shall
                  unsuccessfully contest the jurisdiction of any arbitration forum
                  located
                  in Orange County, California, over any matter which is the subject
                  of this
                  agreement, the prevailing party shall be entitled to recover from
                  the
                  losing party its legal fees and any out-of-pocket expenses incurred
                  in
                  connection with the defense of such legal proceeding or its efforts
                  to
                  enforce its rights to arbitration as provided for
                  herein;

              


      

      
        	 	
                J.

              	
                The
                  parties shall accept the decision of any award as being final and
                  conclusive and agree to abide
                  thereby;

              


      

      
        	 	
                K.

              	
                Any
                  decision may be filed with any court as a basis for judgment and
                  execution
                  for collection.

              


      

      


      
        	8.	
                Representations,
                  Warrants and Covenants.
                  The Client represents, warrants and covenants to the Consultant
                  as
                  follows:

              


      

      


      The
        Client has the full authority, right, power and legal capacity to enter into
        this Agreement and to consummate the transactions which are provided for
        herein.
        The execution of this Agreement by the Client and its delivery to the
        Consultant, and the consummation by it of the transactions which are
        contemplated herein have been duly approved and authorized by all necessary
        action by the Client’s Board of Directors and no further authorization shall be
        necessary on the part of the Client for the performance and consummation
        by the
        Client of the transactions which are contemplated by this
        Agreement.

      


      The
        business and operations of the Client have been and are being conducted in
        all
        material respects in accordance with all applicable laws, rules and regulations
        of all authorities which affect the Client or its properties, assets, businesses
        or prospects. The performance of this Agreement shall not result in any breach
        of, or constitute a default under, or result in the imposition of any lien
        or
        encumbrance upon any property of the Client or cause acceleration under any
        arrangement, agreement or other instrument to which the Client is a party
        or by
        which any of its assets are bound. The Client has performed in all respects
        all
        of its obligations which are, as of the date of this Agreement, required
        to be
        performed by it pursuant to the terms of any such agreement, contract or
        commitment.

      


      Consultant,
        on behalf of itself, and its affiliates, hereby covenants and agrees not
        to
        directly or indirectly, offer to "short sell", contract to "short sell",
        or
        otherwise "short sell" the Securities of the Client.

      


      
        	9.	
                Non-Circumvention.
                  In
                  and for valuable consideration, Client hereby agrees that Consultant
                  may
                  introduce (whether by written, oral, data, or other form of communication)
                  Client to one or more opportunities, including, without limitation,
                  natural persons, corporations, limited liability companies, partnerships,
                  unincorporated businesses, sole proprietorships and similar entities
                  (hereinafter an “Opportunity” or “Opportunities”). Client further
                  acknowledges and agrees that the identity of the subject Opportunities,
                  and all other information concerning an Opportunity (including
                  without
                  limitation, all mailing information, phone and fax numbers, email
                  addresses and other contact information) introduced hereunder are
                  the
                  property of Consultant, and shall be treated as confidential and
                  proprietary information by Client, its affiliates, officers, directors,
                  shareholders, employees, agents, representatives, successors and
                  assigns.
                  Client shall not use such information, except in the context of
                  any
                  arrangement with Consultant in which Consultant is directly and
                  actively
                  involved, and never without Consultant’s prior written approval. Client
                  further agrees that neither it nor its employees, affiliates or
                  assigns,
                  shall enter into, or otherwise arrange (either for it/him/herself,
                  or any
                  other person or entity) any business relationship, contact any
                  person
                  regarding such Opportunity, either directly or indirectly, or any
                  of its
                  affiliates, or accept any compensation or advantage in relation
                  to such
                  Opportunity except as directly though Consultant, without the prior
                  written approval of Consultant. Consultant is relying on Client’s assent
                  to these terms and their intent to be bound by the terms by evidence
                  of
                  their signature. Without Client’s signed assent to these terms, Consultant
                  would not introduce any Opportunity or disclose any confidential
                  information to Client as herein
                  described.

              


      

      


      
        
          
          

        

        
           

          
            

          

        

        
          
          

        

      

      
        	
                10.

              	
                Notices.
                  Any notice or other communication required or permitted hereunder
                  must be
                  in writing and sent by either (i) certified mail, postage prepaid,
                  return
                  receipt requested and First Class mail; or (ii) overnight delivery
                  with
                  confirmation of delivery; or (iii) facsimile transmission with
                  an original
                  mailed by first class mail, postage prepaid, or in each case to
                  such other
                  address and facsimile number as shall have last been furnished
                  by like
                  notice. If mailing is impossible due to an absence of postal service,
                  and
                  other methods of sending notice are not otherwise available, notice
                  shall
                  be hand-delivered to the aforesaid addresses. Each notice or communication
                  shall be deemed to have been given as of the date so mailed or
                  delivered,
                  as the case may be; provided, however, that any notice sent by
                  facsimile
                  shall be deemed to have been given as of the date sent by facsimile
                  if a
                  copy of such notice is also mailed by first class mail on the date
                  sent by
                  facsimile; if the date of mailing is not the same as the date of
                  sending
                  by facsimile, then the date of mailing by first class mail shall
                  be deemed
                  to be the date upon which notice
                  given.

              


      

      


      
        	11.	
                Counterparts.
                  This Agreement may be executed simultaneously in one or more counterparts,
                  each of which shall be deemed an original, but all of which together
                  shall
                  constitute one and the same
                  instrument.

              


      

      


      
        	12.	
                Preliminary
                  Statement.
                  The Preliminary Statement is incorporated herein by this reference
                  and
                  made a material part of this Agreement.

              


      

      


      
        	13.	
                Entire
                  Agreement. With
                  respect to the services specific to this Agreement, this Agreement
                  supersedes any and all other agreements, either oral or written,
                  between
                  the parties hereto. Each party to this Agreement acknowledges that
                  no
                  representation, inducements, promises or agreement, orally or otherwise,
                  have been made by any party, or anyone acting on behalf of any
                  party,
                  which are not embodied herein, and that no other agreement, statement,
                  or
                  promise not contained in this Agreement with respect to the services
                  identified shall be valid or binding. Any modification of this
                  Agreement
                  will be effective only if it is in writing and signed by all
                  parties.

              


      

      


      IN
        WITNESS WHEREOF,
        the
        Parties hereto have caused this Agreement to be duly executed, all as of
        the day
        and year indicated above.

      


      


      CONSULTANT:

      


      


      /s/
        Bradley J.
        Wilhite                                
          

      Ascendiant
        Capital Group, LLC

      By:     
        Bradley
        J. Wilhite

      Its:     
        Managing
        Director

      Date:  
        July
        18,
        2005

      


      


      CLIENT:

      


      SmartVideo
        Technologies, Inc.

      


      


      /s/
        Richard E. Bennett,
        Jr.                          
         

      By:     
        Richard
        E. Bennett, Jr.

      Its:     
        President
        & CEO

      Date: 
        July
        18,
        2005