EXHIBIT NO. 6.8
FINANCIAL ADVISORY AGREEMENT WITH
VILLIERS CAPITAL PARTNERS, LLC DATED NOVEMBER 1, 1998
FINANCIAL ADVISORY AGREEMENT
This FINANCIAL ADVISORY AGREEMENT is made by and between VILLIERS CAPITAL
PARTNERS, LLC, a New York Corporation, (hereafter "VCP"), and TIMBER RESOURCES
INTERNATIONAL, INC. a Delaware Corporation, (hereafter "TRI") and dated November
1, 1998. In consideration of the mutual promises contained herein, and on the
terms and conditions herein set forth, the parties agree as follows:
ARTICLE I.
ENGAGEMENT.
VCP is hereby retained as TRI's financial advisor.
ARTICLE II.
SERVICES.
VCP agrees to provide to TRI the financial advisory services described
below:
(i) Assist in the preparation and dissemination of information
materials for potential investors;
(ii) Identify and contact individuals, firms and their
financial advisors that may be suitable prospective
investors satisfactory to TRI;
(iii)Act as an exclusive agent to TRI to employ the
underwriters;
(iv)Coordinate and advise on aspects of public relations,
shareholders relations, audit coordination, relationships
with underwriters, transfer agents, market-makers and
other broker dealers in matters related to the securities
of TRI;
(v) Assist in the preparation and coordination of annual,
quarterly and current filings as required of TRI pursuant
to the Securities and Exchange Act of 1934 and Regulations
of the Securities and Exchange Commission.
Page 1 of 7
ARTICLE III.
COMPENSATION.
3.01 In consideration for such services, TRI agrees to pay VCP a
monthly advisory fee of $ 3,500 shall be paid by TRI for the term of this
agreement beginning November 1, 1998;
3.02 In addition to the monthly financial advisory fees payable to VCP
pursuant to Article 3.01, TRI shall pay or cause to be paid to VCP the amounts
of which will be equal to stated percentages of the funds raised. The fees shall
be payable in accordance with the "Xxxxxx" formula as follows:
(i) 5% of the first $1 million of the funds raised;
(ii) 4% of the second $1 million of the funds raised;
(iii)3% of the third $1 million of the funds raised;
(iv) 2% of the fourth $1 million of the funds raised; and
(v) 1% of any additional funds raised.
3.03 The Fees set forth above shall be payable with respect to and upon
completion of any transaction with any financing source:
(i) While this Agreement remains in effect; or
(ii) During an eight (8) month period (the "Tail Period")
following the termination of this Agreement. Within ten (10)
days following the termination of this Agreement by either
party for any reason, VCP shall designate in writing to TRI
all prospective financing sources to which VCP or TRI, during
the term of this Agreement, made a presentation and had
discussions with, regarding a possible funding. Within ten
days of receipt of VCP list, TRI shall notify VCP in writing
of all prospective financial sources which were in contact
with TRI during the term of this Agreement and which are not
included in VCP's designation. If a financing is concluded
with the prospective financing source, included in either
such designations during the Tail Period, VCP shall be
entitled to be compensated as provided in this Agreement.
3.04 While this Agreement remains in effect, VCP shall have a right of
first refusal to raise funds for TRI;
3.05 In addition to any fees payable to VCP pursuant to this Agreement,
VCP shall be entitled to reimbursement on a monthly basis for all reasonable and
itemized out-
Page 2 of 7
of-pocket expenses, incurred by VCP in connection with the performance of
services hereunder. The costs that will be charged to TRI shall include, among
other things, printing, travel expense, legal and accounting fees, postage,
overnight mail costs and messenger fees. Expenses shall not be incurred without
the advance approval of TRI.
ARTICLE IV.
TERMS AND TERMINATION.
3.01 This Agreement shall be for an initial term of five (5) years from
the date hereof. Thereafter, this Agreement shall automatically be renewed for
successive one (1) year terms unless either party notifies the other in writing
of its intent not to renew not less than thirty (30) days before the end of the
initial term or the one-year renewal term.
4.02 Either party hereto shall have the right to terminate this
Agreement upon ninety (90) days written notice to the other party.
4.03 No termination of this Agreement, however brought about, shall
deprive VCP of the right to receive all of the following:
(i) A prorated (for the number of days up to the date of
termination) portion of the monthly Advisory Fees set forth
in Article 3.01 above.
(ii) The full amount of the Fees set forth in Article 3.02 above
for raising the funds for TRI during the period before early
termination of this Agreement and continuing through the
Tail Period.
(iii) All reasonable expenses incurred by VCP up to the date of
early termination and authorized under this Agreement.
ARTICLE V.
CONFIDENTIALITY.
5.01. TRI and VCP agree that any information or advice, written or
oral, provided by either party pursuant to this Agreement will be treated by the
receiving party as confidential, and will be used solely by the parties hereto
and will not be used, circulated, quoted or otherwise referred to for any other
purpose, nor will it be included in or referred to, in whole or in part in any
communication whether written or oral, prepared, issued or transmitted by either
party or any affiliate, director, officer, employee, agent or representative of
either party, without, in each instance, the originating party's prior written
consent. Further, in connection with this engagement of VCP, it is contemplated
that either party may supply to the other party certain nonpublic or
Page 3 of 7
proprietary information concerning the originating party or its operations
("Confidential Information"). Both parties agree to use their best efforts to
appropriately denote as confidential all such information which is delivered in
written form.
5.02. VCP shall disclose Confidential Information of TRI solely for the
purposes of rendering services pursuant to and in accordance with this
Agreement; provided, however, that the foregoing shall not apply to any
information which becomes publicly available other than as a result of the
breach of either parties' undertakings hereunder, or that which either party may
be required to disclose by judicial or administrative process in connection with
any action, suit, proceeding or claim.
ARTICLE VI.
CONFLICTS.
TRI acknowledges that VCP and its affiliates have and will continue to
have financial advisory and other relationships with parties other than the TRI
pursuant to which VCP may acquire information of interest to the TRI. VCP shall
have no obligation to disclose such information to TRI. TRI recognizes that VCP
is being engaged hereunder to provide the services described above only to TRI
and to such other parties, if any, who execute this Agreement in specified other
capacities, and is not acting as an agent or a fiduciary of, and shall have no
duties or liability to, the holders of the TRI's equity or debt or any third
party in connection with its engagement hereunder, all of which purported duties
are hereby expressly waived. No one other that TRI is authorized to rely upon
the engagement of VCP hereunder or any statements, advice or opinions rendered
by VCP.
ARTICLE VII.
EXCLUSIVITY.
TRI agrees that no other financing transactions will be authorized by it
during the term of this Agreement and it will not directly or indirectly
negotiate or enter into any other agreement to perform services on its behalf of
the type which VCP is authorized to perform hereunder without the prior express
written consent of VCP. No fee payable to any other financial advisor, either by
TRI or another entity, shall reduce or otherwise affect the fees payable
hereunder to VCP.
Page 4 of 7
ARTICLE VIII.
PUBLIC ANNOUNCEMENT.
TRI agrees that VCP shall have the right to place announcements and
advertisements in financial newspapers and other financial trade journals
subject to the following terms and conditions:
(i) TRI shall have the right to approve of the form and content of
any and all announcements and advertisements before the
placement of such announcements or advertisements;
(ii) Any and all announcements or advertisements are to be limited
to the subject of describing VCP's service in connection with
this Agreement; and
(iii) All costs associated with publishing any and all announcements
or advertisements contemplated under this paragraph shall be
borne solely by VCP.
ARTICLE IX.
INDEMNIFICATION.
9.01 TRI shall indemnify and hold harmless VCP and its affiliates,
officers, directors, agents and employees from and against any and all losses,
claims, damages, liabilities or actions which arise out of or based upon:
(i) any untrue statement or information contained in the materials
furnished to VCP by TRI, or any supplement thereto;
(ii) any omission to state a fact which renders information
supplied misleading;
(iii) any breach of the representations, warranties, covenants
and/or agreements of TRI contained in this Agreement; and
(iv) any actions, direct or indirect, by TRI or its agents (other
than VCP) in connection with any offering and sale of
securities which are in violation of any applicable federal or
state securities laws and regulations.
9.02 VCP shall indemnify and hold harmless TRI and its officers,
directors, agents and employees, from and against any and all losses, claims,
damages, liabilities or actions which arise out of or are based upon:
Page 5 of 7
(i) any misrepresentations by VCP concerning TRI which is not
based upon material provided by TRI;
(ii) any breach of the representations, warranties, covenants
and/or agreements of VCP contained in this Agreement; and
(iii) any action, direct or indirect, by VCP in violation of any
applicable federal or state securities laws and regulations in
connection with the offering and sale of the TRI's securities.
9.03 Each indemnifying party under this Article IX shall immediately
reimburse each indemnified party for all expenses (including, without
limitation, reasonable fees and disbursements of legal counsel) incurred by the
indemnified party in connection with investigating, preparing for or defending
any action or claim, whether or not in connection with pending or threatened
litigation or an administrative proceeding.
9.04 Promptly after receipt by an indemnified party under this Article IX
of notice of the commencement of any action or proceeding, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Article IX, notify the indemnifying party in writing of the
commencement thereof, and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party so desires jointly with
any other indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the indemnifying parties. The failure to
notify an indemnifying party promptly of the commencement of any such action or
proceeding, if prejudicial to its ability to defend such action or proceeding,
shall relieve such indemnifying party of any liability to the indemnified party
under this Article IX, but the omission to so notify an indemnifying party will
not relieve such indemnifying party of any liability which it may have to any
indemnified party otherwise under this Article IX. No indemnifying party shall
be liable for the settlement of any proceeding (including any governmental
investigation) effected without its written consent, but if settled with such
consent, or if there be a final judgment for the plaintiff, such indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
9.05 Neither VCP nor TRI will be responsible for any losses, claims,
damages, liabilities or expenses of the other which are determined by a final
judgment of a court of competent jurisdiction to have resulted solely from
actions taken or omitted to be taken by such other party due to such other
party's false statements, willful misconduct or gross negligence.
Page 6 of 7
IN WITNESS WHEREOF, VILLIERS CAPITAL PARTNERS, LLC and TIMBER RESOURCES
INTERNATIONAL, INC. have caused this Agreement to be executed and delivered by
their duly authorized representatives as of the date first written above, to be
effective.
VILLIERS CAPITAL PARTNERS, LLC
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
---------------------------------
Title: Managing Partner
-------------------------------
TIMBER RESOURCES INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Chairman/CEO
------------------------------
Page 7 of 7
