EXHIBIT 10.1
FINANCIAL ADVISORY AGREEMENT
between
Equidyne Corporation, 000 Xxxxxxx Xxxxxx, 0000, Xxxxxxxxx, X.X. X0X 0X0, Xxxxxx
(hereinafter "Equidyne" or "the Principal")
and
MFC MERCHANT BANK SA, Xxxxxxxxxxxxxxxx 0, 0000 Xxxxxxx (hereinafter "the
Advisor")
WITNESSETH
WHEREAS, Equidyne and the Advisor desire to enter into an agreement for the
purposes of having the Advisor provide certain financial advisory services to
Equidyne, all as is more fully set out and conditioned below;
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained the parties hereto agree as follows:
ARTICLE 1: STATEMENT OF SERVICES
The Advisor hereby agrees to provide the Principal with financial advisory
services in the area of investment banking, company research and the sale or
purchase of potential assets for and of Equidyne including similar activities
such as advise on presale planning process, identify and contact suitable
purchasers or vendors, prepare and provide information for purchasers and
vendors as required, negotiate sales or purchase pricing and terms, make
arrangements for appropriate legal representation, co-ordinate the sale or
purchase process with the ongoing legal disputes with other shareholders.
In particular, the Advisor will provide, advice and analysis with regards to the
specific assignments given to him verbal or in writing from time to time.
ARTICLE 2: FEES
Asset purchase or asset sale success fee equal to:
5% of the total consideration paid for the acquisition or sale of assets for
Equidyne for a value of up to USD 10'000'000.--
7% of the total consideration paid for the acquisition or sale of assets for
Equidyne for a value greater than USD 10'000'000.--
A monthly retainer of USD 75'000.-- , payable quarterly in advance for a
minimum of 12 months. After the initial period either party can terminate the
agreement with 4 month notice.
Equidyne shall reimburse to the Advisor all expenses reasonably incurred in the
performance of the Advisor's duties under this Agreement provided that Equidyne
receives the relevant vouchers in connection with any claim for reimbursement of
expenses.
ARTICLE 3: INVOICING AND PAYMENT
The Advisor shall invoice Equidyne for the services performed above on a
quarterly basis in advance.
ARTICLE 4: DURATION AND TERMINATION
This Advisory Agreement shall remain valid for an initial period of 12 month
with a 4 month notice period thereafter. Termination of the agreement by either
party at any time has to occur in writing.
ARTICLE 5: STATUS OF PARTIES
Neither party shall be deemed to be the agent of the other, nor shall either
party have the right or authority to incur any obligation on behalf of the
other, it being understood that each party is independent and will not be
deemed, other than by operation of law, to be the agent, employee or legal
representative of the other, nor shall this agreement be deemed to establish a
joint venture, partnership or other legal status making one party liable for the
debts or obligations of whatever kind of the other party. The principal shall
not be the employee of the Principal and shall not mention to third parties his
activities for the Principal.
ARTICLE 6: BANKING SECRECY
Equidyne hereby approves that the Advisor, its employees and officers are
entitled to release to any third party any and all information in relation to
the accounts and deposits of the customer and customers beneficial owners with
the Advisor to the extent necessary and appropriate for the realization of any
transaction and for the protection of the Advisor interests connected therewith.
Equidyne expressly waive the banking secrecy duty of the Advisor in case of a
dispute between the Advisor and Equidyne corporation related to any transaction.
ARTICLE 7: GOVERNING LAW AND JURISDICTION
This agreement is subject to Swiss law.
The Court of the Republic and Canton of Appenzell Ausserrhoden shall have
exclusive jurisdiction over any dispute arising our of or in connection with
this agreement. Appeals to the Swiss Federal Supreme Court are reserved.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed into
duplicate originals on the date of January 1st, 2004
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxxxxxxxxxx /s/ Xxxxxxx Xxxxx
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MFC MERCHANT EQUIDYNE
BANK SA CORPORATION
