Exhibit 10.33
FINANCIAL ADVISORY AGREEMENT
FINANCIAL ADVISORY AGREEMENT (the "Agreement") dated as of
August 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 certain of the assets and assumption of certain of the
liabilities of Product Intelligence, Inc. ("PI) (the "PI 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 $79,166.67 upon the consummation of the PII 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
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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 or in
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 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.
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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 provisions 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 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.
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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:
Title:
MARKET FACTS, INC.
By: \S\ XXXXXXX X. SULLLIVAN
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
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