Re.: Financial Advisory and Investment Banking Agreement Dear Mr. Oberosler:
Exhibit
10.1
|
May
5, 2008
|
Xx.
Xxxxxx X. Xxxxxxxxx
Chairman
& Chief Executive Officer
000
Xxxxxxxxx Xxxx.
Xxxxx
X
Xxxxxx,
XX 00000
Dear Xx.
Xxxxxxxxx:
American
Capital Partners, LLC (“American”) is pleased to propose to Theater Xtreme
Entertainment Group, Inc., a Florida corporation (the “Company”) this Financial
Advisory and Investment Banking Agreement (“Agreement”). This
Agreement provides for American to act as a non – exclusive financial and
investment banking advisor (“Advisor”) on matters related to investment banking
and corporate financing activities involving the Company.
It is
expressly understood by the parties hereto that this Agreement is based upon
American’s discussions with the Company, financial materials provide by the
Company and various representations made to American by the Company, its
principals, its present and proposed business activities, as well as, its
operations and financial conditions.
The
following sets forth our understanding with respect to American providing
financial advisory services for the Company.
1. For
a period of twelve (12) months from the date of this agreement, to be extended
by mutual consent, American Capital will render financial consulting and
investment banking – related services to the Company on a non – exclusive basis
as such services shall be required, services shall be reasonable within the
criteria of industry standards for non – exclusive advisory services which shall
include the following:
(a) to
advise and assist in matters pertaining to the financial matters and
requirements of the Company and to assist, as and when required, in formulating
plans and methods of financing, including, but not limited to: equity and debt
financing, mergers and acquisitions, divestiture and restructuring
possibilities; and
(b) should
the Company determine to pursue and complete any financing American Capital
shall have the right of first refusal to participate as placement agent or other
similar role or capacity. A separate agreement for the services
mentioned in this paragraph (1 (b)) shall be negotiated and finalized;
and
(c) corporate
public relations, as may be requested or advisable, services may include, but
not limited to, introducing the Company to various institutional investors,
holding public seminars and presentations and exposing the Company to various
media sources.
2. Services
requiring travel or an expenditure of consecutive days, shall be requested by
the Company in writing and upon not less than three business days notice, unless
such notice is waived by American. Such notice shall be to the address specified
above or to such other place designated in writing.
3. For
American Capital’s services to be performed hereunder, and for American
Capital’s continued availability to perform such services, the Company will pay
American Capital three hundred fifty thousand (350,000) shares of common stock
in the Company, restrictions if any will last no longer then 12 months from the
date of issuance, which shall be granted as of the date of this agreement. Any
shares will have “piggy-back” registration rights for any registration statement
filed by the company within the next 12 months. Securities received from the
Company may be assigned in whole or in part during such period to any officers,
directors, affiliates, or employees of American.
For monthly services we shall receive a
fee of $5,000 per month, which fee shall be paid to us as follows: (i) $5,000
upon execution of this Agreement; and (ii) the balance of $5,000 upon the first
of each month thereafter for the duration of this Agreement.
4. The
Company acknowledges that all opinions and advice (written or oral) to be given
by American Capital to the Company in connection with American Capital's
engagement hereunder are intended solely for the benefit and use of the Company,
they are not intended to be relied upon by any person or entity other than the
Company, and no such opinion or advice shall be used for any other purpose or
reproduced, disseminated, quoted or referred to at any time, in any manner or
for any purpose, nor may the Company make any public references to American
Capital, or use American Capital's name in any annual reports or any other
reports or releases of the Company without American Capital's prior written
consent or as may be required by law.
5. The
parties expressly acknowledge and agree that, regardless of whether a
transaction is consummated, the Company shall be responsible for, and shall pay
all reasonable expenses incurred in connection with this Agreement, including
American’s reasonable out – of – pocket expenses. American shall
receive the Company’s written consent prior to incurring expenses in excess of
five hundred dollars ($500.00). The reimbursement shall survive the
expiration or termination of this agreement if expenses were incurred during the
term.
6. The
Company acknowledges that American Capital and its affiliates are in the
business of providing financial services and consulting advice to
others. Nothing herein contained shall be construed to limit or
restrict American Capital in conducting such business with respect to others, or
in rendering such advice to others, except that American Capital will not
provide services to others when such services may materially and adversely
affect the Company.
7. This
Agreement has been duly approved by the Company’s Board of Directors, and that
the Company has warranted that this Agreement does not conflict with, and will
not result in the default or material breach and other agreement to which the
Company is a party or by which it is bound.
8. American
Capital shall have no authority to bind the Company to any contract or
commitment, inasmuch as American Capital’s services hereunder are advisory in
nature.
9. The
Company recognizes and confirms that, in advising the Company and in fulfilling
its engagement hereunder, American Capital will use and rely on data, material
and other information furnished to American Capital by the
Company. The Company acknowledges and agrees that in performing its
services under this engagement that unless a facial review of such data,
material or other information supplied by the Company would reveal a material
inaccuracy contained therein, American Capital may rely upon same, without
independently verifying the accuracy, completeness or veracity of
same.
American
Capital will maintain in confidence all proprietary, non-published information
obtained by American Capital with respect to the Company during the course of
the performance of American Capital’s services hereunder and American Capital
shall not use any of the same for its own benefit or disclose any of the same to
any third party, without the Company’s prior written consent, both during and
after the term of this Agreement.
10. The
Company agrees to indemnify and hold harmless American, its parents,
subsidiaries, affiliates, divisions, and predecessors and their respective past
and present directors, officers, employees, attorneys and agents, and each of
their respective successors, assigns, administrators and attorneys from all
losses, claims, damages, liabilities and expenses (including attorney's fees and
expenses) incurred by them in connection with the Company's performance under
this Agreement, other than as a result of American's gross negligence, bad faith
or misrepresentation. American agrees to indemnify and hold harmless the
Company, its parents, subsidiaries, affiliates, divisions, and predecessors and
their respective past and present directors, officers, employees, attorneys and
agents, and each of their respective successors, assigns, administrators and
attorneys from all losses, claims, damages, liabilities and expenses (including
attorney's fees and expenses) incurred by them in connection with American's
performance under this Agreement, other than as a result of the Company's gross
negligence, bad faith or misrepresentation.
11. This
Agreement shall not be assignable by either party without the other party's
prior written consent.
12. This
Agreement shall be binding upon, and shall inure to the benefit of the Company’s
and American Capital’s respective successors and permitted assigns.
13. The
foregoing represents the sole and entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior agreements with
respect thereto. This Agreement may not be modified, amended or
waived except by a written instrument signed by the party to be
charged.
14. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without regard to the principles of conflicts of
laws of such State.
15. This
Agreement can be terminated by either party with thirty (30) days written notice
after the initial ninety (90) days has elapsed.
Please
signify your agreement to the foregoing by signing and returning to us the
enclosed copy of this Agreement which will thereupon constitute an agreement
between us.
|
Very
truly yours,
|
|
|
AMERICAN
CAPITAL PARTNERS, LLC
|
|
|
By: /s/ Xxxxxxx X.
Xxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Chief
Executive Officer
|
Agreed
and Consented to:
By /s/Xxxxxx X.
Xxxxxxxxx
Xxxxxx
X. Xxxxxxxxx
Chief Executive Officer
.
