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[XXXXXXX & ASSOCIATES, INC. LETTERHEAD]
FINDER'S FEE AGREEMENT
This Finder's Fee Agreement ("Agreement") is made between Xxxxxxx &
Associates, Inc., an Illinois corporation ("KAI") and the undersigned
("Client") as of the 4th day of August, 1998.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Nonexclusive Representation Transactions. Client hereby engages and
appoints KAI as its representative, during the term, and in accordance with the
provisions, of this Agreement, to contact and introduce Client to third parties
for the purpose of facilitating one or more transactions. A "transaction", or
each of several transactions, for purposes hereof, shall mean and, may take the
form, alternatively, or in combination, of, without limitation, (a) a
dedication by Client of goods and/or services, (b) an exchange of Client goods,
(c) a sale of Client goods, or (d) a purchase by Client of goods or services.
2. Finder's Fee. (a) When and if Client, or any affiliate of Client, or any
person acting in conjunction with or under the direction of Client, directly or
indirectly, purchases or sells, or acquires by trade, barter or exchange, goods
or services or acquires any rights or interest therein, at any time during the
term of this Agreement, or for a period of two years following termination of
this Agreement, as the result of or in connection with any transaction
identified, or any introduction or contact made, during the term of this
Agreement, Client shall unconditionally pay KAI a fee in the amount equal to
twelve and one-half percent (12-1/2%) of the gross value of the transaction (the
"Finder's Fee"). The Finder's Fee shall be due and payable immediately upon the
consummation of the transaction. The Finder's Fee may be paid to KAI in the form
of shares of stock or other securities transferred to KAI, or by transfer of
like-kind property or other assets, having equivalent value, as determined by
KAI in its discretion. In the event KAI accepts securities as consideration
hereunder, such securities shall be transferred to KAI free and clear of any and
all liens, claims, security interests and other encumbrances.
(b) The gross value of the transaction, for purposes hereof, shall be that
value which is stated and agreed upon by the parties thereto; provided, that
such value is not less than fair market value. In the event that no specific
gross value is stated, or in the further event that the gross value as stated
is deemed by KAI to be unreasonably low or below fair market value, the gross
value of the subject transaction shall be conclusively deemed to be the full
fair market value of all goods, services, and other benefits received, acquired
and/or inuring to the Client.
3. Non-circumvention. As Client's representative with respect to the subject
matter of this Agreement, Client agrees that it will engage and use KAI on its
behalf in connection with any contemplated transaction, and that neither Client
nor its affiliates will in any manner whatsoever attempt to circumvent KAI's
appointment as set forth in Section I hereof. Further, Client agrees that it
shall not, without the express prior written consent of KAI, enter into or
otherwise engage in bilateral or multi-party negotiations between itself and
any KAI contact without providing notice thereof to KAI.
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4. Confidentiality. Client will keep and hold in strict confidence and shall
not disclose to any third party or use in any way (other than as
contemplated by this Agreement) any proprietary and confidential
information of KAI during the term of this Agreement and thereafter for so
long a period as is permitted by applicable law. Client hereby agrees to
indemnify and hold KAI harmless from and against any and all demands,
claims, actions, causes of action, liabilities, costs and expenses
resulting from the disclosure by Client, its agents, Affiliates or
employees to any third party of the confidential and proprietary
information of KAI in connection with and in violation of this Agreement.
Client recognizes that certain breaches of this Agreement will cause KAI
irreparable harm and damage for which KAI cannot be adequately compensated
at law and, thus, in addition to any and all remedies which may be
provided by law, KAI shall have the right to restrain the breach of any
provision of this Agreement and to obtain an injunction against further
breach.
5. Term of Agreement. The term of this Agreement shall be one year,
commencing on the date set forth hereinabove, and terminating on the first
anniversary of such date. Client's obligations as set forth in this
Agreement shall survive the termination of this Agreement.
6. Indemnification. Client shall indemnify, save and keep KAI and its
successors and assigns, forever harmless against and from all liability,
demands, claims, actions or causes of action, assessments, losses, fines,
penalties, costs, damages and expenses, including reasonable attorneys'
fees, sustained or incurred by KAI as a result of, or arising out of, or
by virtue of, any (i) breach of any representation, warranty, covenant,
agreement or obligation of Client or by its affiliates herein, and (ii)
act or omission by or of Client or any of its affiliates.
7. Taxes. Client shall be responsible for and shall pay any and all personal
property, sales, use, excise or similar taxes incurred as a result of or in
connection with any transaction contemplated hereby.
8. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof. Any amendments, or
alternative or supplementary provisions to this Agreement must be made in
writing and duly executed by an authorized representative or agent of
each of the parties hereto.
9. Non-Waiver. The failure in any one or more instances of a party to insist
upon performance of any of the terms, covenants or conditions of this
Agreement shall not be deemed to constitute a waiver of any right or
privilege in this Agreement. No waiver shall be effective unless it is in
writing and signed by an authorized representative of the waiving party.
10. Severability. The invalidity of any provision of this Agreement or portion
of a provision shall not affect the validity of any other provision of
this Agreement or the remaining portion of the applicable provision.
11. Applicable Law. This Agreement shall be governed and controlled as to
validity, enforcement, interpretation, construction, effect, and in all
other respects by the internal laws of the State of Illinois applicable to
contracts made in that State. The parties submit to any proper court of
competent jurisdiction located in the State of Illinois, in the event of
any dispute arising between the parties hereunder.
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12. Prevailing Party. In the event that Kai takes legal action to enforce its
rights hereunder, KAI shall be entitled to recover and Client agrees to pay
KAI's reasonable attorneys' fees and expenses in addition to all other
rights and remedies of KAI in connection with such enforcement action.
13. Binding Effect; Benefit. (a) This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and their successors and permitted
assigns. This Agreement may not be assigned by either party hereto without
the prior written consent of the other party. Nothing in this Agreement,
express or implied, is intended to confer on any person other than the
parties hereto, and their respective successors and permitted assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
(b) Notwithstanding anything contained herein to the contrary, Client
shall cause the terms and provisions of this Agreement to be binding
upon its shareholders, members, officers, directors, partners,
employees and any of its/their associates and affiliates acting in any
capacity, whether jointly or alone, or together with or as agent for
any person, firm, company, corporation, partnership, association or
other entity whatsoever, whether directly or indirectly.
14. Limitation of Representations of KAI: Relationship of Parties. KAI makes no
representation or warranties to Client and all such representations and
warranties, whether expresses or implied, are hereby disclaimed. Other than
to use reasonable efforts to make introductions and contacts on behalf of
Client, KAI shall have no obligations or duties to Client and, thus, shall
have no liability to Client. Client acknowledges that KAI is not, and
possesses no licence or permit to be, a broker, broker-dealer, investment
advisor, market-maker or other similar agent, as such terms are defined by
the regulations promulgated by the Securities and Exchange Commission.
KAI's relationship to Client and affiliates of Client shall be as
independent contractors, only as set forth herein and nothing contained
herein shall make or constitute either party as an agent, broker, licensor,
partner, joint venturer, franchisor or franchisee, or employee or employer,
one with the other.
15. Definition of Affiliates. For the purposes hereof, "affiliate" shall mean
with respect to any person or entity, any other person, corporation,
partnership, trust or other entity that directly or indirectly, through one
or more intermediaries, is controlled by, controls or is under common
control with, such person or entity. Client shall use reasonable efforts to
procure written acknowledgments from each of the foregoing stating that
they join in and agree to be personally bound by the terms of this
Agreement as set forth in this Section. Client shall provide written
evidence of the acknowledgments to KAI or its nominee upon request.
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IN WITNESS WHEREOF, the parties have executed this Finder's Fee Agreement
on the date first above written.
CLIENT:
Bristol Media Ltd
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Its: Managing Member
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Address 00000 xxxxxx xxx xxxxx
Xxxxxxxxx, Xx. 00000
Telephone No 000-000-0000
Fax No 000-000-0000
XXXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxx Xxxxxxx
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Its: President
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Address 0000 x. Xxxxxxx Xxx.
Xxxxxxx, Xx. 00000
Telephone No 000-000-0000
Fax No 000-000-0000
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[XXXXXXX & ASSOCIATES, INC. LETTERHEAD]
