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EXHIBIT 10.17
FINANCIAL ADVISORY FEE AGREEMENT
This Financial Advisory Fee Agreement (the "Agreement ") is made and entered
into as of the 7th day of May, 1999 (the "Effective Date"), by and among Probex
Corporation, a Colorado corporation ("Probex"), Xxxxxxx X. Xxxxxxxx, a Texas
resident ("Xxxxxxxx") and Xxxxx X. Xxxxxxx, a Texas resident ("Coffeen")
WHEREAS, Probex is desirous of engaging Xxxxxxxx and Xxxxxxx in the capacity of
financial advisors specifically for the purpose of identifying and assisting
Probex in obtaining funding for the expansion of its operations, including but
not limited to, funding for the acquisition of certain sources of feedstock
supplies and the construction of one or more Probex plants (the "Proposed
Investment").
NOW, THEREFORE, in consideration of the premises and the covenants, agreements
and obligations set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
covenant and agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
meanings indicated below:
"Advisors" means Xxxxxxxx and Coffeen, their affiliates, successors and assigns.
"Affiliate" of a person shall mean any other person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such person. For the purposes of this definition, "control"
means the power to direct the management and policies of a person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
"Additional Securities" means any debt or equity securities of Probex and/or any
of its Affiliates, issued after the Proposed Investment by any person included
on Exhibit "A" attached hereto and in accordance with the provisions set forth
in Section 3 of this Agreement.
"Approved Investor(s)" means those persons and their Affiliates listed on
Exhibit "A" attached hereto.
"Capital Provided" means the entire commitment made by an Approved Investor to
Probex at Closing (as defined below) regardless of whether such commitment is
for debt or equity.
"Closing" means the execution by Probex and an Approved Investor of binding
documentation evidencing the investment by an Approved Investor in the Proposed
Investment or in any Subsequent Transaction, regardless of whether such
investment takes the form of debt or equity.
"Subsequent Transaction" means any investment made by an Approved Investor in
Probex following and/or in addition to but under no circumstances including the
initial Proposed Investment and prior to May 6th, 2004.
2. Fees Payable to Advisors Upon Closing of the Proposed Investment.
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(a) As consideration for services rendered by the Advisors, should any
one or more of the Approved Investors provide funding for the Proposed
Investment then the fees described below shall be due and payable to the
Advisors at Closing. The cash fees and warrants described in (i) and (ii) below
shall be paid 50% to Xxxxxxxx and 50% to Coffeen at Closing. The fee to be paid
to the Advisors by Probex shall be equal to the following:
(i) an amount in cash equal to six percent (6%) of the Capital
Provided by the Approved Investor(s); and
(ii) Five year warrants to purchase a number of shares of
Probex common stock equal to six percent (6%) of the Capital Provided divided by
the price per common share paid by the equity investors participating in the
Proposed Investment. The Advisors' exercise price for the warrants shall be the
price per common share paid by the equity investors participating in the
Proposed Investment. These warrants will be subject to a Warrant Holder's
Agreement which will be negotiated by the parties in good faith and will contain
among other things, a cashless conversion feature and registration rights
commensurate with those of the investors participating in the Proposed
Investment.
3. Fees payable to the Advisors for Additional Capital Raised From Approved
Investors. If, prior to May 6, 2004, Probex issues any Additional Securities to
an Approved Investor, regardless of whether or not such investor participated in
the Proposed Investment, then the Advisors shall be deemed to have earned and
Probex shall be obligated to pay to Advisors (a) a cash fee equal to one percent
(1%) of the Capital Provided by the Approved Investor(s); and (b) five year
warrants equal to two percent (2%) of the Capital Provided with shares issued
based upon the formula outlined in 2 (a) (ii) above. The Advisors' exercise
price for these warrants shall be the price per common share paid by the equity
investors participating in the Subsequent Transaction. Such fees and warrants
will be due and payable to Advisors at the closing of such Subsequent
Transactions.
4. Expenses. Probex agrees to reimburse Advisors, upon request made from time to
time, for its reasonable out-of-pocket expenses incurred in connection with
Advisors' activities under this Agreement.
5. Indemnification. Probex agrees to indemnify Advisors, and their respective
directors, officers, partners, employees, agents, and controlling persons
(Advisors and each such person being an "Indemnified Party") from and against
any and all losses, claims, damages and liabilities, joint or several, related
to the Proposed Investment or any transaction contemplated by this Agreement and
will reimburse any Indemnified Party for all expenses (including fees and
expenses of counsel) as they are incurred in connection with the investigation
of, preparation for or defense of any pending or threatened claim or any action
or proceeding arising therefrom, whether or not such Indemnified Party is a
party and whether or not such claim, action or proceeding is initiated or
brought by Probex. Probex will not be liable under the foregoing indemnification
provision to the extent that any loss, claim, damage or liability is found in a
final judgement by a court to have resulted from Advisors' gross negligence or
willful misconduct.
6. Termination. Advisors' engagement hereunder may be terminated by either
Probex or the Advisors at any time after June 30, 1999 upon written notice to
that effect to the other party, it being understood that the provisions relating
to the payment of fees and expenses, indemnification's, contribution,
settlements and the role and duties of the Advisors and Probex shall survive any
such
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termination.
7. Miscellaneous Provisions.
(a) Relationship. This agreement does not create, and shall not be
construed to create, any joint venture or partnership between the parties. No
officer, employee, agent, servant, or independent contractor of the Advisors nor
their Affiliates shall at any time be deemed to be an employee, agent, servant,
or broker of Probex for any purpose whatsoever solely as a result of this
Agreement, and Advisors shall have no right or authority to assume or create any
obligation or liability, express or implied, on Probex's behalf, or to bind
Probex in any manner or thing whatsoever.
(b) Waiver. Notwithstanding anything to the contrary contained herein,
the failure of either party to seek a redress for violation, or to insist upon
the strict performance, of any covenant, agreement, provision, or condition
hereof shall not constitute a waiver of the terms of such covenant, agreement,
provision, or condition at subsequent times or of the terms of any other
covenant, agreement, provision, or condition, and each party shall have all
remedies provided herein with respect to any subsequent act which would have
originally constituted the violation hereunder.
(c) Governing Law. This Agreement and all questions relating to its
validity, interpretation, performance, and enforcement (including without
limitation, provisions concerning limitations of action), shall be governed by
and construed in accordance with the internal laws of the State of Texas,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary.
(d) Notices. Any notice, request, demand, consent or authorization
(hereinafter referred to as "Notice") required or permitted to be given under
this Agreement shall be in writing and shall be delivered either personally, by
courier or by facsimile to the address or facsimile number below:
If to Probex: If to Advisors:
Xx. Xxxxxx X. Xxxxxx
Probex Corporation Xx. Xxxxxxx X. Xxxxxxxx
0000 XxXxx, Xxxxx 000 3831 Turtlecreek Blvd. 7-E
Xxxxxxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Fax # (000) 000-0000 Fax # (000) 000-0000
(e) Entire Agreement. This Agreement constitutes the sole and only
agreement of the parties hereto and supersedes any prior understandings or
written or oral agreements between the parties respecting the subject matter
herein.
(f) Multiple Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed to be
an original, but all of which together constitute one and the same instrument.
(g) Amendments. This Agreement shall not be amended, changed or
modified or any provision thereof waived or discharged except in writing by both
parties.
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(h) This Agreement shall be binding upon and inure to the benefit of
the heirs, personal representatives, successors and assigns of the parties
hereto.
(i) Advisors may add names to Exhibit "A" from time to time, provided
all such additions must be approved by Probex in writing.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the Effective Date.
PROBEX CORPORATION
By: _____________________________
Name: ___________________________
Title: __________________________
XXXXXXX X. XXXXXXXX XXXXX X. XXXXXXX
By:_________________________ By: _____________________________
EXHIBIT A
1. Xxxxx Xxxxx
