FORM OF FINANCIAL ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the day of , 1997 by and
between May ▇▇▇▇▇ Group, Inc. ("May ▇▇▇▇▇"), and Apollo International of
Delaware, Inc. ("Company").
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purpose: The Company hereby engages May ▇▇▇▇▇ for the term
specified in Paragraph 2 hereof to render consulting advice to the Company as an
investment banker relating to financial and similar matters upon the terms and
conditions set forth herein.
2. Term: Except as otherwise specified in Paragraph 4 hereof, this
Agreement shall be effective for a three (3) year period commencing , 1997 and
ending to , 2000.
3. Duties of May ▇▇▇▇▇: During the term of this Agreement, May ▇▇▇▇▇
shall seek out Transactions (as hereinafter defined) on behalf of the Company
and shall furnish advice to the Company in connection with any such
Transactions.
4. Compensation: In consideration for the services rendered by May
▇▇▇▇▇ to the Company pursuant to this Agreement (and in addition to the expenses
provided for in Paragraph 5 hereof), the Company shall compensate May ▇▇▇▇▇ as
follows:
(a) The Company shall pay May ▇▇▇▇▇ a fee of $2,187.50 per month for the
term of this Agreement. The aggregate sum of $78,750 shall be due and payable
upon the execution of this Agreement.
(b) In the event that any Transaction occurs during the term of this
Agreement or to the extent provided herein, one year thereafter, the Company
shall pay fees to May ▇▇▇▇▇ as follows:
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Consideration Fee
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$ - 0 - to $ 500,000 Minimum Fee of $25,000
$ 500,000 to $5,000,000 5% of Consideration
$5,000,000 or more $250,000 plus 1% of the
Consideration in excess of
$5,000,000
For the purposes of this Agreement, "Consideration" shall mean the total
market value on the day of the closing of stock, cash, assets and all other
property (real or personal) exchanged or received, directly or indirectly by the
Company or any of its security holders in connection with any Transaction. Any
co-broker retained by May ▇▇▇▇▇ shall be paid by May ▇▇▇▇▇.
(c) For the purposes of the Agreement, a "Transaction" shall mean (i) any
transaction originated by May ▇▇▇▇▇, other than in the ordinary course of trade
or business of the Company, whereby, directly or indirectly, control of, or a
material interest in, the Company or any of its businesses or any of their
respective assets, is transferred for Consideration, or (ii) any transaction
originated by May ▇▇▇▇▇ whereby the Company acquires any other company or the
assets of any other company or an interest in any other company (an
"Acquisition").
In the event May ▇▇▇▇▇ originates a line of credit with a lender or a
corporate partner, the Company and May ▇▇▇▇▇ will mutually agree on a
satisfactory fee and the terms of payment of such fee. In the event May ▇▇▇▇▇
introduces the Company to a joint venture partner or customer and sales develop
as a result of the introduction, the Company agrees to pay a fee of five percent
(5%) of total sales generated directly from this introduction during the first
two years following the date of the first sale. Total sales shall mean gross
receipts less any applicable refunds, returns, allowances, credits, taxes and
shipping charges and monies paid by the Company by way of settlement or judgment
arising out of claims made by or threatened against the Company. Commission
payments shall be paid on the 15th day of each third month following the receipt
of customers' payments. In the event any adjustments are made to the total sales
after the
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commission has been paid, the Company shall be entitled to an appropriate refund
or credit against future payments under this Agreement.
(d) All fees to be paid pursuant to this Agreement, except as otherwise
specified, are due and payable to May ▇▇▇▇▇ in cash or company check at the
closing or closings of any Transaction specified in Paragraph 4. In the event
that this Agreement shall not be renewed or if terminated for any reason,
notwithstanding any such non-renewal or termination, May ▇▇▇▇▇ shall be entitled
to a full fee as provided under Paragraphs 4 and 5 hereof, for any Transaction
for which the discussions were initiated during the term of this Agreement and
which is consummated within a period of twelve months after non-renewal or
termination of this Agreement. Nothing herein shall impose any obligation on the
part of the Company to enter into any Transaction.
5. Expenses of May ▇▇▇▇▇: In addition to the fees payable hereunder
and regardless of whether any Transaction set forth in Paragraph 4 hereof is
proposed or consummated, the Company shall reimburse May ▇▇▇▇▇ for the
reasonable fees and disbursements of May ▇▇▇▇▇'▇ counsel and May ▇▇▇▇▇'▇
reasonable travel and out-of-pocket expenses incurred in connection with the
services performed by May ▇▇▇▇▇ pursuant to this Agreement and at the request of
the Company, including without limitation, hotels, food and associated expenses
and long-distance telephone calls, except that individual expenses exceeding
$500 must be pre-approved in writing by the Company and that total non
pre-approved expenses may not exceed $10,000.
6. Liability of May ▇▇▇▇▇: The Company acknowledges that all opinions
and advice (written or oral) given by May ▇▇▇▇▇ to the Company in connection
with May ▇▇▇▇▇'▇ engagement are intended solely for the benefit and use of the
Company in considering the Transaction to which they relate, and the Company
agrees that no person or entity other than the Company shall be entitled to make
use of or rely upon the advice of May ▇▇▇▇▇ to be given hereunder, and no such
opinion or advice shall be used for any other purpose or reproduced,
disseminated, quoted or referred to at any time, in any manner or for any
purpose, nor may the Company make any public references to May ▇▇▇▇▇, or use May
▇▇▇▇▇'▇ name in any annual reports or any other reports or releases of the
Company without May ▇▇▇▇▇'▇ prior written consent.
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The Company acknowledges that May ▇▇▇▇▇ makes no commitment
whatsoever as to making a market in the Company's securities or to recommending
or advising its clients to purchase the Company's securities. Research reports
or corporate finance reports that may be prepared by May ▇▇▇▇▇ will, when and if
prepared, be done solely on the merits or judgment of analysis of May ▇▇▇▇▇ or
any senior corporate finance personnel of May ▇▇▇▇▇.
7. May ▇▇▇▇▇'▇ Services to Others: The Company acknowledges that May
▇▇▇▇▇ or its affiliates are in the business of providing financial services and
consulting advice to others. Nothing herein contained shall be construed to
limit or restrict May ▇▇▇▇▇ in conducting such business with respect to others,
or in rendering such advice to others, except that May ▇▇▇▇▇ will not provide
services to others when such services may materially and adversely affect the
Company.
8. Company Information:
(a) The Company recognizes and confirms that, in advising the Company and
in fulfilling its engagement hereunder, May ▇▇▇▇▇ will use and rely on data,
material and other information furnished to May ▇▇▇▇▇ by the Company. The
Company acknowledges and agrees that in performing its services under this
engagement, May ▇▇▇▇▇ may rely upon the data, material and other information
supplied by the Company without independently verifying the accuracy,
completeness or veracity of same.
(b) Except as contemplated by the terms hereof or as required by applicable
law, May ▇▇▇▇▇ shall keep confidential all non-public information provided to it
by the Company, and shall not disclose such information to any third party
without the Company's prior written consent, other than such of its employees
and advisors as May ▇▇▇▇▇ reasonably determines to have a need to know.
9. Indemnification:
(a) The Company shall indemnify and hold May ▇▇▇▇▇ harmless against any and
all liabilities, claims, lawsuits, including any and all awards and/or judgments
to which it may become subject under the Securities Act of 1933, as amended (the
"1933 Act"), the Securities Exchange Act of 1934, as amended (the "Act") or any
other federal or state statute, at common law or otherwise, insofar as said
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liabilities, claims and lawsuits (including costs, expenses, awards and/or
judgments) arise out of or are in connection with the services rendered by May
▇▇▇▇▇ or any transactions in connection with this Agreement, except for any
liabilities, claims and lawsuits (including awards and/or judgments), arising
out of acts or omissions of May ▇▇▇▇▇. In addition, the Company shall also
indemnify and hold May ▇▇▇▇▇ harmless against any and all costs and expenses,
including reasonable counsel fees, incurred relating to the foregoing.
May ▇▇▇▇▇ shall give the Company prompt notice of any such liability,
claim or lawsuit which May ▇▇▇▇▇ contends is the subject matter of the Company's
indemnification and the Company thereupon shall be granted the right to take any
and all necessary and proper action, at its sole cost and expense, with respect
to such liability, claim and lawsuit, including the right to settle, compromise
and dispose of such liability, claim or lawsuit, excepting therefrom any and all
proceedings or hearings before any regulatory bodies and/or authorities.
May ▇▇▇▇▇ shall indemnify and hold the Company harmless against any
and all liabilities, claims and lawsuits, including any and all awards and/or
judgments to which it may become subject under the 1933 Act, the Act or any
other federal or state statute, at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including costs, expenses, awards and/or
judgments) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact required to be stated or necessary to make the
statement therein, not misleading, which statement or omission was made in
reliance upon information furnished in writing to the Company by or on behalf of
May ▇▇▇▇▇ for inclusion in any registration statement or prospectus or any
amendment or supplement thereto or in connection with any Transaction to which
this Agreement applies or which otherwise arises. In addition, May ▇▇▇▇▇ shall
also indemnify and hold the Company harmless against any and all costs and
expenses, including reasonable counsel fees, incurred relating to the foregoing.
The Company shall give May ▇▇▇▇▇ prompt notice of any such liability,
claim or lawsuit which the Company contends is the subject matter of May ▇▇▇▇▇'▇
indemnification and May ▇▇▇▇▇ thereupon shall be granted the right to take any
and all necessary and proper action, at its sole cost and expense, with respect
to such liability, claim and
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lawsuit, including the right to settle, compromise or dispose of such liability,
claim or lawsuit, excepting therefrom any and all proceedings or hearings before
any regulatory bodies and/or authorities.
(b) In order to provide for just and equitable contribution under the Act
in any case in which (i) any person entitled to indemnification under this
Paragraph 9 makes claim for indemnification pursuant hereto but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Paragraph 9 provides for indemnification in
such case, or (ii) contribution under the Act may be required on the part of any
such person in circumstances for which indemnification is provided under this
Paragraph 9, then, and in each such case, the Company and May ▇▇▇▇▇ shall
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after any contribution from others) in such proportion taking
into consideration the relative benefits received by each party from the
transactions undertaken in connection with this Agreement (taking into account
the portion of the proceeds realized by each), the parties' relative knowledge
and access to information concerning the matter with respect to which the claim
was assessed, the opportunity to correct and prevent any statement or omission
and other equitable considerations appropriate under the circumstances; and
provided, that, in any such case, no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Within fifteen (15) days after receipt by any party to this
Agreement (or its representative) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (the "Contributing Party"), notify
the Contributing Party of the commencement thereof, but the omission so to
notify the Contributing Party will not relieve it from any liability which it
may have to any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and such party
notifies a Contributing Party or his or its representative of the commencement
thereof within the aforesaid fifteen (15) days, the Contributing Party will be
entitled to
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participate therein with the notifying party and any other Contributing Party
similarly notified. Any such Contributing Party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution without the written
consent of the Contributing Party, which consent shall not be unreasonably
withheld. The indemnification provisions contained in this Paragraph 9 are in
addition to any other rights or remedies which either party hereto may have with
respect to the other or hereunder.
10. May ▇▇▇▇▇ an Independent Contractor: May ▇▇▇▇▇ shall perform its
services hereunder as an independent contractor and not as an employee of the
Company or an affiliate thereof. The parties hereto expressly understand and
agree that May ▇▇▇▇▇ shall have no authority to act for, represent or bind the
Company or any affiliate thereof in any manner, except as may be agreed to
expressly by the Company in writing from time to time.
11. Miscellaneous:
(a) This Agreement between the Company and May ▇▇▇▇▇ constitutes the entire
agreement and understanding of the parties hereto, and supersedes any and all
previous agreements and understandings, whether oral or written, between the
parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required hereunder shall be in
writing and shall be deemed sufficiently given if hand-delivered (i) five
calendar days after being sent postage prepaid by registered mail, return
receipt requested, or (ii) one business day after being sent by facsimile with
confirmatory notice by U.S. mail, to the respective parties as set forth below,
or to such other address as either party may notify the other in writing:
If to the Company, to: Apollo International of Delaware, Inc.
with a copy to:
If to May ▇▇▇▇▇, to: May ▇▇▇▇▇ Group, Inc.
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▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
with a copy to: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Gersten, Savage, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) This Agreement shall be binding upon and inure to the benefit of each
of the parties hereto and their respective successors, legal representatives and
assigns.
(d) This Agreement may be executed in any number of counterparts, each of
which together shall constitute one and the same original document.
(e) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
(a) This Agreement shall be construed in accordance with and governed by the
laws of the State of New York, without giving effect to its conflict of law
principles. The parties hereby agree that any dispute which may arise
between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in New York City, and they hereby submit
to the exclusive jurisdiction of the courts of the State of New York
located in New York, New York and of the federal courts in the Southern
District of New York with respect to any action or legal proceeding
commenced by any party, and irrevocably waive any objection they now or
hereafter may have respecting the venue of any such action or proceeding
brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Agreement, and
consent to the service of process in any such action or legal proceeding by
means of registered or certified mail, return receipt requested, in care of
the address set forth in Paragraph 11(b) hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
MAY ▇▇▇▇▇ GROUP, INC.
By:________________________________
Name:
Title:
APOLLO INTERNATIONAL OF DELAWARE, INC.
By:________________________________
, President
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