APRIL 1, 2004 AND THEN ON EACH JULY 1,
OCTOBER 1, JANUARY 1 AND APRIL 1 THEREAFTER DURING THE TERM OF THIS AGREEMENT;
PROVIDED THAT, THE PRO RATA PORTION OF THE ADVISORY FEE OWED TO ADVISOR FOR THE
PERIOD BEGINNING ON THE CLOSING DATE AND ENDING ON MARCH 31, 2004 SHALL BE
PAYABLE IN ADVANCE ON THE CLOSING DATE; PROVIDED, FURTHER, THAT ANY QUARTERLY
INSTALLMENT PAID OR PAYABLE HEREUNDER SHALL BE PRO RATED IN THE EVENT THIS
AGREEMENT IS TERMINATED PRIOR TO THE EXPIRATION OF THE FOUR (4)-YEAR ADVISORY
PERIOD CONTEMPLATED HEREBY.
IN THE EVENT THAT THE ADVISORY PERIOD IS TERMINATED
PRIOR TO THE EXPIRATION OF THE FOUR (4)-YEAR ADVISORY PERIOD DURING A CALENDAR
QUARTER FOR WHICH A QUARTERLY INSTALLMENT OF THE ADVISORY FEES HAS BEEN PAID TO
ADVISOR, ADVISOR SHALL REFUND A PRO RATA PORTION OF SUCH QUARTERLY PAYMENT BASED
ON THE NUMBER OF DAYS REMAINING IN SUCH QUARTER FOLLOWING THE EFFECTIVE DATE OF
THE TERMINATION OF THE ADVISORY SERVICES.
(B)
THE COMPANY SHALL REIMBURSE ADVISOR FOR ALL
REASONABLE EXPENSES INCURRED BY ADVISOR OR ANY OF ITS EMPLOYEES, OFFICERS,
MANAGERS OR MEMBERS (INCLUDING EDWARDS) IN THE COURSE OF PERFORMING SERVICES
UNDER THIS AGREEMENT, SUBJECT TO THE COMPANY'S NORMAL REQUIREMENTS WITH RESPECT
TO REPORTING AND DOCUMENTATION OF SUCH EXPENSES.
3.
NO AGENCY CREATED.
ADVISOR IS
PROVIDING SERVICES SOLELY AS A CONSULTANT AND NOT AS AN EMPLOYEE OF THE
COMPANY.
ADVISOR SHALL BE RESPONSIBLE FOR THE PAYMENT OF ALL INCOME, SOCIAL
SECURITY AND OTHER SELF-EMPLOYMENT TAXES RELATING TO ITS SERVICES AND THE
SERVICES OF ITS EMPLOYEES PURSUANT TO THIS AGREEMENT.
NOTHING CONTAINED IN THIS
AGREEMENT SHALL BE CONSTRUED TO CONSTITUTE ADVISOR, ITS AGENTS OR EMPLOYEES, AS
THE AGENT, EMPLOYEE OR THE LEGAL REPRESENTATIVE OF THE COMPANY FOR ANY PURPOSE.
NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED TO AUTHORIZE ADVISOR TO,
NOR SHALL ADVISOR WITHOUT OTHER VALID AUTHORIZATION FROM THE COMPANY, HOLD
ITSELF AS HAVING, ANY RIGHT OR AUTHORITY TO ASSUME OR CREATE AN OBLIGATION OR
RESPONSIBILITY, EXPRESS OR IMPLIED, ON BEHALF OF OR IN THE NAME OF THE COMPANY,
OR BIND THE COMPANY IN ANY MANNER.
4.
REPRESENTATION AND WARRANTY.
(A)
ADVISOR REPRESENTS AND WARRANTS TO THE
COMPANY THAT (I) ADVISOR IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, (II) THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
COMPANY ACTION ON THE PART OF ADVISOR, (III) UPON THE EXECUTION AND DELIVERY OF
THIS AGREEMENT BY THE PARTIES HERETO, THIS AGREEMENT WILL CONSTITUTE THE LEGAL,
VALID AND BINDING OBLIGATIONS OF ADVISOR, ENFORCEABLE IN ACCORDANCE WITH ITS
TERMS, AND (IV) THE EXECUTION AND DELIVERY BY ADVISOR OF THIS AGREEMENT AND ITS
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER WILL NOT VIOLATE, CONTRAVENE OR
CONFLICT WITH ANY EMPLOYMENT AGREEMENT, CONSULTING AGREEMENT, CONFIDENTIALITY
AGREEMENT, NON-COMPETITION AGREEMENT OR OTHER AGREEMENT OR CONTRACT TO WHICH IT
IS A PARTY OR BY WHICH IT MAY BE BOUND.
2
(B)
THE COMPANY REPRESENTS AND WARRANTS TO
ADVISOR THAT (I) THE EXECUTION, DELIVERY AND