EXHIBIT 10.5
ATLAS CAPITAL SERVICES, INC.
April 8, 2002
Xx. Xxxxxxx X. X. Xxxxxx
Chief Executive Officer
Global Realty Management Group, Inc.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Re: AMENDED AND RESTATED INVESTMENT BANKING/ADVISORY AGREEMENT
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Dear Xxxx:
This will confirm the basis upon which Global Realty Management Group, Inc. (the
"Company") has engaged Atlas Capital Services, LLC ("Atlas") on a non-exclusive
basis, to provide certain advisory and investment banking services.
1. SERVICES TO BE RENDERED.
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1.1 Atlas will introduce the Company to corporations ("Public
Entity(ies)") that are fully reporting whose securities are registered pursuant
to Section 12 (g) of the Securities Exchange Act of 1934 (the "Exchange Act"),
which may engage in a reverse merger transaction ("Transaction") with the
Company, whereby the Company will become a wholly-owned subsidiary of the Public
Entity. In connection with the Transaction, the shareholders of the Company will
exchange their equity interest in the Company for similar equity interests of
the Public Entity and will be the controlling shareholders, officers, and
directors of the merged entity ("Merged Entity").
1.2 Atlas will also provide investment banking and financial consulting
services, including, but not limited to, corporate finance, capital markets, and
merger and acquisition banking and consultation services (the "Services"), to
the Company.
1.3 Except as set forth below, all services provided by Atlas under
this agreement shall be at Atlas's cost and risk. Atlas's sole compensation
shall be a "Transaction Fee" (as set forth in Section 5.1 below) and a "Banking
Fee" (as set forth in Section 5.2 below).
1.4 Notwithstanding anything in this agreement to the contrary, the
Company shall have the sole and absolute discretion to accept or not accept the
terms of any Transaction. The Company shall not have any liability whatsoever to
Atlas or any other person or entity resulting from its decision not to enter
into a proposed Transaction, regardless of the terms of the proposed
Transaction.
000 Xxxxxxxx Xxxxx 000 Xxx Xxxx, XX 00000 U.S.A Phone:
(000) 000-0000 Fax: (000) 000-0000
2. BEST EFFORTS. Atlas agrees to devote such time and effort to the affairs of
the Company as is reasonable and adequate to render the Services contemplated by
this agreement. The Company understands and agrees that Atlas shall not be
responsible for the performance of any services which may be rendered hereunder
without the Company providing the necessary information in writing prior
thereto, nor shall Atlas include any services that constitute the rendering of
any legal opinions or performance of work that is in the ordinary purview of the
Certified Public Accountant. Atlas does not guarantee results on behalf of the
Company, but shall pursue all reasonable avenues available through its network
of contacts. At such time as an interest is expressed by a third party in the
Company's needs, Atlas shall notify the Company and advise it as to the source
of such interest and any terms and conditions of such interest. The acceptance
and consummation of any transaction shall be subject to acceptance of the terms
and conditions by the Company in its sole discretion.
3. INFORMATION. The Company shall furnish Atlas such information as Atlas
reasonably requests in connection with the performance of its services hereunder
(all such information so furnished is referred to herein as the "Information").
The Company understands and agrees that Atlas, in performing its services
hereunder, will use and rely upon the Information as well as publicly available
information regarding the Company and any potential partners and that Atlas
shall not assume responsibility for independent verification of any information,
whether publicly available or otherwise furnished to it, concerning the Company
or any potential partner, including, without limitation, any financial
information, forecasts or projections, considered by Atlas in connection with
the rendering of its services. Accordingly, Atlas shall be entitled to assume
and rely upon the accuracy and completeness of all such information and is not
required to conduct a physical inspection of any of the properties or assets, or
to prepare or obtain any independent evaluation or appraisal of any of the
assets or liabilities, of the Company or any potential partner. With respect to
any financial forecasts and projections made available to Atlas by the Company
or any potential partners and used by Atlas in its analysis, Atlas shall be
entitled to assume that such forecasts and projections have been reasonably
prepared on bases reflecting the best currently available estimates and
judgments of the management of the Company or any potential partner, as the case
may be, as to the matters covered thereby.
4. TIMELY APPRAISALS. During the Term of this agreement, the Company hereby
agrees to use its commercially reasonable efforts to keep Atlas up to date and
apprised of all business, market and legal developments related to the Company
and its operations and management. Accordingly:
4.1 The Company shall provide Atlas with copies of all amendments,
revisions and changes to its business and marketing plans, bylaws, articles of
incorporation, private placement memoranda, key contracts, employment and
consulting agreements and other operational agreements;
4.2 The Company shall promptly notify Atlas of all new contracts,
agreements, joint ventures or filings with any state, federal or local
administrative agency, including without limitation the SEC, NASD or any state
agency, and shall provide all related documents, including copies of the exact
documents filed, to Atlas, including without limitation, all annual reports,
quarterly reports and notices of change of events, and registration statements
filed with the SEC and any state agency, directly to Atlas;
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4.3 The Company shall also provide directly to Atlas current financial
statements, including balance sheets, income statements, cash flows and all
other documents provided or generated by the Company in the normal course of its
business and requested by Atlas from time to time; and
4.4 Atlas shall keep all documents and information supplied to it
hereunder confidential.
5. FEES. In consideration of Atlas's services, Atlas shall be entitled to
receive, and the Company hereby agrees to compensate Atlas as follows:
5.1 413,869 newly issued shares ("Atlas Shares") of the Public Entity
upon the effective date of a Transaction (the "Transaction Fee"). Atlas shall
have registration rights under the terms of this agreement with respect to the
shares as provided in the Registration Rights Agreement, dated December 17, 2001
(the "Registration Rights Agreement"), by and among Excalibur Holdings, Inc. (a
wholly-owned subsidiary of the Company) and certain other parties, provided that
(a) Atlas agrees to be bound by all of the terms and conditions of the
Registration Rights Agreement, except for Section 10 of such Registration Rights
Agreement, and (b) Atlas shall enter into a Lock-Up Agreement in the form
attached hereto as Schedule B. For purposes of the Lock-Up Agreement, it is
hereby agreed that the Atlas Shares will not be aggregated with any shares held
by Xxxxxxx X. Xxxxxx, the sole indirect member of Atlas.
5.2 A cash payment equal to $150,000 (the "Banking Fee"), payable in
eight equal monthly payments of $18,750 beginning thirty (30) days from the date
of this agreement (which payments shall be personally guaranteed by Xxxxxxx X.
Xxxxxxxx).
5.3 Atlas's Transaction Fee shall have been earned and shall be payable
to Atlas upon consummation of any Transaction which occurs as a result of this
Agreement with any Public Entity which is introduced by Atlas to the Company in
which a Transaction was made in whole or in part during the term of this
agreement . Atlas's Banking Fee shall have been earned and shall be payable to
Atlas upon execution of this agreement.
6. INDEMNITY. The Company hereby agrees to indemnify Atlas under its standard
indemnification provisions, a copy of which is attached hereto as Exhibit A, and
made a part hereof.
7. TERM OF ENGAGEMENT. Atlas' engagement shall be for a period of one (1) year
commencing on the date hereof ("Term"). Thereafter, the agreement may be
terminated by either the Company or Atlas at any time, with or without cause,
upon written notice to that effect to the other party. In the event (i) Atlas is
terminated by the Company, with or without cause, prior to the end of the Term,
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or (ii) Xxxxxxx X.X. Xxxxxx ceases to be President of the Company prior to the
end of the Term AND Xxxxxxx X. Xxxxxxxx ceases to be Chief Financial Officer
prior to the end of the Term, then, in each instance, all of the Banking Fees
that remain due and owing as of such termination date, shall be paid immediately
to Atlas.
8. RELIANCE ON OTHERS. The Company confirms that it will rely on its own
counsel, accountants and other similar expert advisors for legal, accounting,
tax and other similar advice.
9. PUBLICITY. The Company agrees that Atlas shall have the right, at its own
cost, to advertise its participation in any Transaction in "tombstone" or other
appropriate financial advertisements in newspapers, magazines, trade periodicals
or other publications. Atlas agrees that the content of such tombstone or other
advertisements shall not be published without the Company's prior approval,
provided that such approval is not unreasonably withheld or delayed.
10. NO RIGHTS IN SHAREHOLDERS, ETC. The Company recognizes that Atlas has been
engaged only by the Company, and that the Company's engagement of Atlas is not
deemed to be on behalf of and is not intended to confer rights upon any
shareholder, partner or other owner of the Company or any other person not a
party hereto as against Atlas or any of its affiliates or any of their
respective directors, officers, agents, employees or representatives. Unless
otherwise expressly agreed, no one other than the Company is authorized to rely
upon the Company's engagement of Atlas or any statements, advice, opinions or
conduct by Atlas. Without limiting the foregoing, any opinions or advice
rendered to the Company's Board of Directors or management in the course of the
Company's engagement of Atlas are for the purpose of assisting the Board or
management, as the case may be, in evaluating a transaction and do not
constitute a recommendation to any shareholder of the Company concerning action
that such shareholder might or should take in connection with a transaction.
Atlas's role herein is that of an independent contractor.
11. GOVERNING LAW; FORUM. This agreement shall be governed by the laws of the
State of New York. Any and all claims, disputes, or controversies arising out of
this Agreement will be resolved by arbitration before the American Arbitration
Association ("AAA") and that with respect to this Agreement, a party may seek
injunctive relief and ancillary damages before the AAA. Each party irrevocably
consents to subject matter jurisdiction before the AAA. The parties shall
restrict themselves to claims for compensatory damages and no claims shall be
made by any party for punitive or similar damages. The parties agree that any
award or decision by the AAA shall be final and binding upon the parties and a
judgment may be entered in a court of competent jurisdiction upon such award or
decision. The parties agree that the situs of any arbitration or legal
proceedings hereunder shall be the City of New York.
12. MISCELLANEOUS. Nothing in this Agreement is intended to obligate or commit
Atlas to provide any services other than as set out above. This Agreement may be
executed in two or more counterparts, all of which together shall be considered
a single instrument. This Agreement constitutes the entire agreement, and
supersedes all prior agreements and understandings (both written and oral) of
the parties hereto with respect to the subject matter hereof, and cannot be
amended or otherwise modified except in writing executed by the parties hereto.
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The provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the Company. Neither party may assign its obligations
or rights pursuant to this agreement without the prior written consent of the
other party, except that the parties agree that upon the closing of a
Transaction with a Public Entity, the obligations of the Company under this
agreement shall, in addition to the obligations on the Company, become the
obligations of the Public Entity, jointly and severally.
13. NOTICES. All notices and other communications hereunder shall be deemed
given upon (a) the sender's confirmation of receipt of a facsimile transmission
to the recipient's facsimile number set forth below, (b) confirmed delivery by a
standard overnight carrier to the recipient's address set forth below, or (c)
delivery by hand to the recipient's address set forth below (or, in each case,
to or at such other facsimile number or address for a party as such party may
specify by notice given in accordance with this Section 13):
(a) If to the Company, to:
Xx. Xxxxxxx X.X. Xxxxxx
Chief Executive Officer
Global Realty Management Group, Inc.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(b) If to Atlas, to:
Xxxxx Xxxxxxxxxx
Managing Director
Atlas Capital Services, LLC
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
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If you are in agreement with the foregoing, please sign and return the attached
copy of this agreement, whereupon this agreement shall become effective as of
the date hereof.
Sincerely,
ATLAS CAPITAL SERVICES, LLC
By: /S/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Managing Director
AGREED AND ACCEPTED:
GLOBAL REALTY MANAGEMENT GROUP, INC.
By:_______________________
Name:
Title:
Date:_____________________
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Atlas Capital Services, LLC
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with our engagement of Atlas Capital Services, LLC ("Atlas") as an
Investment Banker, we hereby agree to indemnify and hold harmless Atlas and its
affiliates, and the respective directors, officers, shareholders, agents and
employees of Atlas (collectively the "Indemnified Persons"), from and against
any and all claims, actions, suits, proceedings (including those of
shareholders), damages, liabilities and expenses as incurred by any of them
(including the reasonable fees and expenses of counsel) which relate to or arise
out of any actions taken or omitted to be taken by the Company (including any
untrue statements made to any Indemnified Person) in connection with our
engagement of Atlas, including any action by Atlas to collect amounts owed to it
in connection therewith, and we shall reimburse any Indemnified Person for all
expenses (including the reasonable fees and expenses of counsel) as incurred by
such Indemnified Person in connection with investigating, preparing or defending
any such claim, action, suit or proceeding (collectively a "Claim"), in
connection with pending or threatened litigation in which any Indemnified Person
is a party. We will not, however, be responsible for any Claim which is finally
judicially determined to have resulted exclusively from the gross negligence or
willful misconduct of any person seeking indemnification hereunder. We further
agree that no Indemnified Person shall have any liability to us for or in
connection with our engagement of Atlas except for any Claim incurred by us
solely as a direct result of any Indemnified Person's gross negligence or
willful misconduct.
We further agree that we will not, without the prior written consent of Atlas,
settle, compromise or consent to the entry of any judgment in any pending or
threatened Claim in respect of which indemnification may be reasonably sought
hereunder (whether or not any Indemnified Person is an actual or potential party
to such Claim), unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person against whom such
claim may be brought hereunder from any and all liability arising out of such
claim.
Promptly upon receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which indemnification is
being sought hereunder, such Indemnified Person shall notify us in writing of
such complaint or of such assertion or institution but failure to do so notify
us shall not relieve us from any obligations we may have hereunder, unless and
only to the extent such failure results in the forfeiture by us of substantial
rights and defenses, and will not in any event relieve us from any other
obligation or liability we may have to any Indemnified Person, we will assume
the defense of such Claim, including the employment of counsel reasonably
satisfactory to such Indemnified Person and the payment of reasonable fees and
expenses of such counsel. In the event, however, that such Indemnified Person
reasonably determines that having common counsel with the Company and/or another
Indemnified Person would present such counsel with a conflict of interest or if
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the defendant in, or target of, any such Claim, includes an Indemnified Person
and us, and such Indemnified reasonably concludes that there may be legal
defenses available to it or other Indemnified Persons different from or in
addition to those available to us, then such Indemnified Person may employ its
own separate counsel to represent or defend it in any such Claim and we shall
pay the reasonable fees and expenses of such counsel. Notwithstanding anything
herein to the contrary, if we fail timely or diligently to defend, contest, or
otherwise protect against any Claim, the relevant Indemnified Person shall have
the right, but not the obligation, to defend, contest, compromise, settle,
assert crossclaims, or counterclaims or otherwise protect against the same, and
shall be fully indemnified by us therefore, including without limitation, for
the reasonable fees and expenses of its counsel and all amounts paid as a result
of such Claim or the compromise or settlement thereof. In any Claim in which we
assume the defense, the Indemnified Person shall have the right to participate
in such Claim and to retain its own counsel therefore at its own expense.
We agree that if any indemnity sought by an Indemnified Person hereunder is held
by a court to be unavailable for any reason, then (whether or not Atlas is the
Indemnified Person), we and Atlas shall contribute to the Claim for which such
indemnify is held unavailable in such proportion as is appropriate to reflect
the relative benefits to us, on the one hand, and Atlas on the other, in
connection with Atlas's engagement referred to above, and the relative fault, as
between us and the Indemnified Person in respect of the Claim, subject to the
limitation that in no event shall the amount of Atlas's contribution to such
Claim exceed the amount of fees actually received by Atlas from us pursuant to
Atlas's engagement. We hereby agree that the relative benefits to us, on the one
hand, and Atlas on the other, with respect to Atlas's engagement shall be deemed
to be in the same proportion as (a) the total value paid or proposed to be paid
or received by us or our shareholders as the case may be, pursuant to the
transaction (whether or not consummated) for which you are engaged to render
services bears to (b) the fee actually paid to Atlas in connection with such
engagement; provided, however, that under no circumstances whatsoever shall
Atlas be required to contribute to any such claim any amount in excess of the
fee actually paid in connection with such engagement.
Our indemnity, reimbursement and contribution obligations under this Agreement
shall be in addition to, and shall in no way limit or otherwise adversely
affect, any rights that any Indemnified Party may have at law or at equity.
Should Atlas or its personnel be required or requested by us to provide
documentary evidence or testimony in connection with any proceeding arising form
or relating to Atlas's engagement, we agree to pay all reasonable expenses
(including fees incurred for legal counsel) in complying therewith.
Atlas agrees to indemnify and hold harmless the Company, any of its directors,
officers, agents, and employees, against any actions, lawsuits, damages or
liabilities to which the Company or such person may become subject related to or
arising out of any willful negligence by Atlas, and Atlas will reimburse the
Company and each such person for all legal and other expenses incurred in
connection with investigating or defending any such litigation in which the
Company or any such person is a party; provided, however, that Atlas will not be
liable in any such case for losses, claims, damages, liabilities or expenses
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that have arisen by way of the bad faith, gross negligence, ordinary negligence
or willful misconduct of the Company or the party claiming a right to
indemnification. This indemnity agreement will be in addition to any liability
which Atlas may otherwise have.
Any and all claims, disputes, or controversies arising out of this Agreement
will be resolved by arbitration before the American Arbitration Association
("AAA") and that with respect to this Agreement, a party may seek injunctive
relief and ancillary damages before the AAA. Each party irrevocably consents to
subject matter jurisdiction before the AAA. The parties shall restrict
themselves to claims for compensatory damages and no claims shall be made by any
party for punitive or similar damages. The parties agree that any award or
decision by the AAA shall be final and binding upon the parties and a judgment
may be entered in a court of competent jurisdiction upon such award or decision.
The parties agree that the situs of any arbitration or legal proceedings
hereunder shall be the City of New York.
It is understood that, in connection with Atlas's engagement, Atlas may be
engaged to act in one or more additional capacities and that the terms of the
original engagement or any such additional engagement may be embodied in one or
more separate written agreements. The provisions of this Agreement shall apply
to the original engagement, any such additional engagement and any modifications
of the original engagement or such additional engagement and shall remain in
full force and effect following the completion or termination of Atlas's
engagement(s).
Very truly yours,
GLOBAL REALTY MANAGEMENT GROUP, INC.
By: /S/ Xxxxxxx X.X. Xxxxxx
----------------------------------
Xxxxxxx X.X. Xxxxxx
Chief Executive Officer
Confirmed and agreed to:
ATLAS CAPITAL SERVICES, LLC
By: /S/ Xxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Managing Director
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