Exhibit 10.37
XXXXXX CAPITAL CORPORATION
FEE AGREEMENT
March 17, 2000
Mr. Xxxx Xxxxx, Chief Executive Officer
Mr. Xxxxx Xxxxxx, Executive Vice President
XxxxxxxXxxxxx.xxx
Gentlemen:
XxxxxxxXxxxxx.xxx (together with its parents, affiliates, subsidiaries,
officers and directors, the "Company") has requested the assistance of Xxxxxx
Capital Corporation ("Xxxxxx") with regard to the following potential
transactions (collectively the "Transactions"):
(i) Transactions whereby the capital stock or assets, or a
material portion thereof, of the Company may be directly or
indirectly acquired by another party or parties.
(ii) Transactions whereby the Company may be merged into or
consolidated with another party or parties;
(iii) Transactions whereby the Company may enter into a joint
venture or similar arrangement with another party or parties
in which a contribution of capital, an assumption or guarantee
of indebtedness, a contribution of assets or services, or any
of the foregoing, may be made by the participants;
Xxxxxx agrees to render such assistance upon the terms and conditions and in
consideration of the compensation hereinafter set forth as follows:
A. The Company hereby authorizes Xxxxxx and Xxxxxx hereby agrees
for a period of six (6) months from the date hereof (the
"Exclusivity Period") to initiate discussions on behalf of the
Company on an exclusive basis only with the parties listed in
Schedule A with respect to their potential interest in
effectuating any of the Transactions. The authority herein
granted to Xxxxxx shall terminate at the end of the
Exclusivity Period unless active negotiations are then in
progress between the
Mr. Xxxx Xxxxx
Mr. Xxxxx Xxxxxx
March 17, 2000
Page 2
Company and one of the parties, in which event the Exclusivity
Period shall be extended until the termination of any such
negotiations. The Exclusivity Period may be extended by mutual
consent of the Company and Xxxxxx.
B. The Company will not initiate, prior to the end of the
Exclusivity Period, any discussions with any of the parties
listed in Schedule A with regard to any of the Transactions,
except through Xxxxxx. In the event the Company receives an
inquiry from a party listed on Schedule A concerning any of
the Transactions, it will promptly inform Xxxxxx of the
potential Transaction and refer to Xxxxxx the inquiry.
C. If the Company consummates, directly or indirectly, a
Transaction with a party or parties listed on Schedule A (i)
prior to the expiration of the Exclusivity Period or (ii)
within six (6) months after expiration of the Exclusivity
Period the Company shall compensate Xxxxxx with a cash payment
equal to 2.0% of the aggregate value of the transaction
consideration.
D. (1) For purposes of determining the aggregate value of the
consideration against which the Xxxxxx fee is to be
computed, there shall be included in addition to cash and
the fair market value of any securities received in
connection with a Transaction, the aggregate amount of
the indebtedness to be assumed or guaranteed directly or
indirectly by the party or parties with whom the
Transaction is consummated. Further, in the case of a
joint venture Transaction, the value of a Transaction
shall include the total fair value of capital, debt
guarantees, and assets or services and other
consideration contributed by the participants multiplied
by the percentage interest received by the Company in
such joint venture.
(2) The fee payable to Xxxxxx with respect to any
consideration paid or received in a Transaction shall be
paid at the Closing of such Transaction; provided,
however, that the portion of any fees relating to
transaction consideration which is contingent in amount
or is payable after the closing (e.g. escrow amounts,
installment payments, etc.) shall be paid when such
consideration is received by the Company or the
shareholders, as applicable.
(3) Xxxxxx shall not be liable for, nor shall its
compensation be reduced by, any obligation incurred by
the Company or any other party for an introduction or
other service in connection with a Transaction.
(4) In order that Xxxxxx may accurately compute the fee to
which it is entitled in the event of the consummation of
a Transaction, the Company shall furnish Xxxxxx with
copies of all documentation relating to any Transaction
hereunder, commencing with the inception of such
Transaction through the Closing thereof. In addition, the
Company shall furnish Xxxxxx with all such other
information (including all relevant data with respect to
contingent and/or deferred payments
Mr. Xxxx Xxxxx
Mr. Xxxxx Xxxxxx
March 17, 2000
Page 3
or other consideration) relating to such Transaction as
Xxxxxx may from time to time request both preceding and
subsequent to the Closing of any such Transaction.
(5) In addition to any fees that may be payable to Xxxxxx
hereunder and regardless of whether any Transaction is
proposed or consummated, the Company hereby agrees, from
time to time upon request, to reimburse Xxxxxx for all
reasonable travel, entertainment, duplicating and
printing charges and other out-of-pocket expenses
incurred in direct connection with any actual or proposed
Transaction or otherwise arising out of Xxxxxx'x
engagement hereunder, but excluding all salary or
overhead allocations. Xxxxxx shall submit an itemized
list of all such expenses to the Company monthly or upon
request. Notwithstanding the foregoing, any expenses
greater than $500 shall require the prior written
approval of the Company.
E. In the absence of willful misfeasance, gross negligence, or
the reckless disregard of its obligations or duties hereunder
on the part of Xxxxxx, neither Xxxxxx nor any partner,
officer, director, employee, or stockholder of Xxxxxx shall be
subject to any liability to the Company, for any act or
omission in the course of, or in connection with, the
rendering or providing of services hereunder. The Company
shall indemnify and hold Xxxxxx, its partners and their
officers, directors, employees and stockholders harmless
against any losses, claims, damages or liabilities to which
they or any of them may become subject in connection with the
services referred to herein and shall reimburse them for any
legal or other expenses (including the cost of any
investigations) reasonably incurred by them arising out of or
in connection with any action or claim in connection therewith
whether or not resulting in any liability; provided, however,
that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability results
from a breach of Xxxxxx'x obligations hereunder or from
Xxxxxx'x negligence or misfeasance in performing services
hereunder. The provisions of this Section E shall indefinitely
survive the termination of the authority granted to Xxxxxx
pursuant to Section A hereof.
F. No person or entity, other than the Company, shall be entitled
to make use of, or rely upon, the advice, services or
materials rendered or provided by Xxxxxx hereunder, and the
Company shall not directly or indirectly disseminate,
distribute or other wise make available any advice, services
or materials prepared by Xxxxxx without Xxxxxx'x prior
consent.
G. This agreement (i) embodies the entire agreement and
understanding of the parties hereto and supersedes all prior
agreements and understandings, written or oral, relating to
the subject matter hereof, and may not be modified or amended
or any term or provision hereof waived or discharged, except
in writing signed by the party against whom such modification,
waiver or discharge is sought to be enforced; and (ii) is not
assignable without the prior written consent of the other
party; provided, however, that the provisions hereof shall
inure to the benefit of, and be binding upon, each successor
Mr. Xxxx Xxxxx
Mr. Xxxxx Xxxxxx
March 17, 2000
Page 4
of the Company, whether by merger, consolidation, transfer of
all or substantially all assets, or otherwise; (iii) has in
all respects been duly authorized, executed, and delivered by
and on behalf of the Company and Xxxxxx; and (iv) shall be
interpreted, construed, enforced and governed by the
applicable laws of the State of New York.
Kindly acknowledge that the foregoing accurately reflects our
agreement with respect to the subject matter thereof, by
signing the enclosed copy of this letter and returning the
same to the undersigned.
Very truly yours,
XXXXXX CAPITAL CORPORATION
By /s/ Xxxxxxx Xxxxx
--------------------------
Xxxxxxx Xxxxx
Vice President
THE FOREGOING IS ACCEPTED AND
AGREED TO AS OF THIS 17th DAY
OF MARCH 2000.
XXXXXXXXXXXXX.XXX
By /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: President
