EXHIBIT 10.33
FINANCIAL ADVISORY AGREEMENT
FINANCIAL ADVISORY AGREEMENT (the "Agreement") dated as of January
1, 1998 by and between ZS FUND L.P., a Delaware partnership with offices at
000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (the "Advisor"),
and MARKET FACTS, INC., a Delaware corporation with offices at 0000 Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx ("MFI").
WHEREAS, MFI proposes to enter into negotiations for the
acquisition of ninety percent (90%) of the outstanding capital stock of
Strategy Research Corporation ("SRC"), representing all of the shares of
SRC's outstanding capital stock owned by shareholders other than MFI (the
"SRC Acquisition"); and
WHEREAS, MFI proposes to enter into negotiations for the
acquisition of certain of the assets and assumption of certain of the
liabilities of Tandem Research Associates, Inc. ("TRA") (the "TRA
Acquisition").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties agree as follows:
1. RESPONSIBILITY OF THE ADVISOR
The Advisor shall provide to MFI and its affiliates on a
non-exclusive basis certain financial advisory services related to MFI's
acquisition program including, without limitation, evaluation and
interpretation of financial data and reports concerning structuring
strategies and alternatives related to such acquisition opportunities.
2. COMPENSATION
In consideration of the benefits and services MFI shall receive
hereunder, MFI shall pay to the Advisor a financial advisory success fee (the
"Fee") of (1) $50,000 upon the consummation of the SRC Transaction and (2)
$300,000 upon the consummation of the TRA Transaction.
3. INDEMNIFICATION AND CONTRIBUTION
3.1 INDEMNIFICATION. MFI agrees to indemnify and hold
harmless each of the Advisor, and its officers, directors, employees,
shareholders and agents (each such person being referred to herein as an
"Indemnified Person") from and against any and all losses, claims, damages or
liabilities related in any way to, arising out of or in connection with the
services provided by the Advisor hereunder ("Indemnified Claims"), and will
reimburse each indemnified Person for all reasonable expenses (including
reasonable fees and expenses of
counsel) as they are incurred in connection with investigating, preparing,
pursuing or defending any action, claim, suit, investigation or proceeding
related in any way to, arising out of or in connection with the Indemnified
Claims, whether or not pending or threatened and whether or not any
Indemnified Party is a party. MFI will not, however, be responsible for any
losses, claims, damages or liabilities (or expenses relating thereto) that
are finally judicially determined to have resulted from the bad faith,
willful misconduct or gross negligence of any Indemnified Person or to have
been beyond the scope of such person's authority under this Agreement. MFI
also agrees that no Indemnified Person shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to MFI for or in
connection with the Indemnified Claims except for any such liability for
losses, claims, damages or liabilities incurred by MFI that are finally
judicially determined to have resulted from the bad faith, willful misconduct
or gross negligence of such Indemnified Person.
MFI will not, without each Indemnified Person's prior written
consent, settle, compromise, consent to the entry of any judgment in or
otherwise seek to terminate any action, claim, suit or proceeding (whether or
not such Indemnified Person is a party thereto) in respect of which
indemnification may be sought hereunder unless such settlement, compromise,
consent or termination includes a full and unconditional release of such
Indemnified Person from any and all liabilities arising out of such action,
claim, suit or proceeding, except that a settlement, compromise, consent or
termination need not include a full and unconditional release of such
Indemnified Person if MFI has (i) given the Advisor reasonable prior notice
of such settlement, compromise, consent or termination, (ii) consulted in
good faith with the Advisor regarding the failure to include therein a full
and unconditional release of such Indemnified Person and (iii) confirmed in
writing that the indemnification provided for in this Section 3.1 shall
continue to its full extent with respect to the action, claim, suit or
proceeding which has been settled, compromised, consented to or terminated
and any other actions, claims, suits or proceeding arising out of the facts
and circumstances which gave rise to the action, claim, suit or proceeding
which has been settled, compromised, consented to or terminated to which such
Indemnified Person would have otherwise been entitled to indemnification
under this Section 3.1. No Indemnified Person seeking indemnification,
reimbursement or contribution under this Agreement will, without MFI's prior
written consent, settle, compromise, consent to the entry of any judgment in
or otherwise seek to terminate any action, claim, suit, investigation or
proceeding referred to in the preceding paragraph.
3.2 CONTRIBUTION. If the indemnification provided for in
Section 3.1 is judicially determined to be unavailable (other than in
accordance with the second sentence of the first paragraph of Section 3.1) to
an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to herein, then, in lieu of indemnifying such
Indemnified Person hereunder, MFI shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (and expenses relating thereto) in such proportion as
is appropriate to reflect not only the relative benefits to the Advisor and
its affiliates, on the one hand, and MFI, on the other hand, in connection
with the services
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heretofore provided to MFI by the Advisor but also the relative fault of each
of the Advisor and its affiliates and MFI, as well as any other relevant
equitable considerations.
3.3 SURVIVAL. All the provisions of this Section 3 shall
remain in full force and effect with respect to actions taken by the Advisor
prior to any termination or completion of the Advisor's services under this
Agreement or the termination of this Agreement, regardless of such
termination or completion.
4. MODIFICATION
This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof. Any change, modification, amendment or
alteration to this Agreement shall be effected only in writing and signed by
the party or parties against whom enforcement of any such change,
modification, amendment or alteration is sought.
5. NONWAIVER
The failure of any party hereto, at any time to require performance
by any party hereto of any provision hereof, shall in no way affect the right
of such failing party hereafter to enforce such provision nor shall any
waiver by any part of any breach of any provisions hereof be taken or held to
be a waiver of any succeeding breach of such provision or as a waiver of the
provision itself.
6. SEVERABILITY
If any provision or provisions of this Agreement is held to be
invalid or unenforceable, such provision shall be automatically reformed and
construed so as to be valid, operative and enforceable to the maximum extent
permitted by law or equity while most nearly preserving its original intent.
The invalidity of any party of this Agreement shall not render invalid the
remaining provisions of this Agreement and, to that extent, the provisions of
this Agreement shall be deemed to be severable.
7. HEADINGS
The headings of this Agreement are inserted for convenience only
and shall not be considered in construction of the provisions hereof.
8. ASSIGNMENT AND SUCCESSORS; BINDING EFFECT, ETC.
The rights and obligations of the Advisor and of MFI under this
Agreement shall inure to the benefit of and shall be binding upon the
successors of the Advisor and of MFI and may not be assigned without the
written consent of the other party hereto, and any such
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purported assignment shall be null and void.
9. GOVERNING LAW
The terms of this Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without regard to
principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
ZS FUND L.P.
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Partner
MARKET FACTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior V.P.
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