EXHIBIT 10.12
FORM OF
AMENDED AND RESTATED CONSULTING AGREEMENT
This AMENDED AND RESTATED CONSULTING AGREEMENT ("Agreement") is made
and entered into as of the ___ day of ________, 2002, by and between Thane
International, Inc., a Delaware corporation (the "Corporation") and H.I.G.
Capital, LLC, a Delaware limited liability company (the "Consultant"). This
Agreement amends and restates in its entirety that certain Consulting Agreement,
dated as of June 10, 1999, by and between the Corporation and the Consultant.
1. Appointment of Consultant. The Corporation appoints the
Consultant and the Consultant accepts appointment on the terms and conditions
provided in this Agreement as a consultant to the Corporation's business,
including any other corporations hereafter formed or acquired by the Corporation
to engage in any business.
2. Board of Directors Supervision. The activities of the
Consultant to be performed under this Agreement shall be subject to the
supervision of the Board of Directors of the Corporation (the "Board") to the
extent required by applicable law or regulation and subject to reasonable
policies not inconsistent with the terms of this Agreement adopted by the Board
and in effect from time to time. Where not required by applicable law or
regulation, the Consultant shall not require the prior approval of the Board to
perform its duties under this Agreement.
3. Authority of Consultant. Subject to any limitations imposed by
applicable law or regulation, the Consultant shall render management, consulting
and financial services to the Corporation which services shall include advice
and assistance concerning any and all aspects of the operations, planning and
financing of the Corporation as needed from time to time, including conducting
relations on behalf of the Corporation with accountants, attorneys, financial
advisors and other professionals. The Consultant will also make periodic reports
to the Corporation with respect to the management services provided hereunder
and the value of the Corporation's assets. The Consultant will use its best
efforts to cause its employees and agents to give the Corporation the benefit of
their special knowledge, skill and business expertise to the extent relevant to
the Corporation's business and offers. In addition, the Consultant shall render
advice and expertise in connection with any acquisitions or dispositions
undertaken by the Corporation and shall from time to time bring to the attention
of the Corporation such investment and other acquisition opportunities as the
Consultant deems appropriate in its sole discretion.
4. Reimbursement of Expenses; Independent Contractor. All
obligations or expenses incurred by the Consultant in the performance of its
duties under this Agreement shall be for the account of, on behalf of, and at
the expense of the Corporation. The Consultant shall not be obligated to make
any advance to or for the account of the Corporation or to pay any sums, except
out of funds held in accounts maintained by the Corporation nor shall the
Consultant be obligated to incur any liability or obligation for the account of
the Corporation without assurance that the necessary funds for the discharge of
such liability or obligation will be provided. The Consultant shall be an
independent contractor, and nothing obtaining in this Agreement shall be deemed
or construed (i) to create a partnership or joint venture between the
Corporation and the Consultant, or (ii) to cause the Consultant to be
responsible in any way for
the debts, liabilities or obligations of the Corporation or any other party, or
(iii) to constitute the Consultant or any of its employees as employees,
officers or agents of the Corporation.
5. Other Activities of Consultant; Investment Opportunities. The
Corporation acknowledges and agrees that neither the Consultant nor any of the
Consultant's employees, officers, directors, affiliates or associates shall be
required to devote full time and business efforts to the duties of the
Consultant specified in this Agreement, but instead shall devote only so much of
such time and efforts as the Consultant reasonably deems necessary. The
Corporation further acknowledges and agrees that the Consultant and its
affiliates are engaged in the business of investing in, acquiring and/or
managing businesses for the Consultant's own account, for the account of
unaffiliated parties, and understands that the Consultant plans to continue to
be engaged in such businesses (and other business or investment activities)
during the term of this Agreement. No aspect or element of such activities shall
be deemed to be engaged in for the benefit of the Corporation or any of its
subsidiaries nor to constitute a conflict of interest. Furthermore,
notwithstanding anything herein to the contrary, the Consultant shall be
required to bring only such investments and/or business opportunities to the
attention of the Corporation as the Consultant, in its sole discretion, deems
appropriate.
6. Compensation of Consultant. In consideration of Consultant's
agreement to provide the management services described herein, the Corporation
will pay to the Consultant the following fees:
(a) The Corporation will pay to the Consultant a one time fee
equal to $1.5 million, payable upon consummation of the merger by and between
Reliant Interactive Media Corp. and a subsidiary of the Corporation.
(b) Upon the occurrence of any Transaction, the Corporation will
pay a fee equal to two percent (2%) of the Total Value of such Transaction. For
purposes of this Agreement, (i) "Transaction" shall mean (A) a merger or
consolidation of the Corporation or any of its subsidiaries with or into another
corporation of which the Corporation or such subsidiary is the surviving
corporation, (B) the purchase by the Corporation or any of its subsidiaries of a
majority of another entity's capital stock or substantially all of another
entity's properties, assets or equity, and (C) a sale of all or substantially
all of the Corporation's capital stock or assets, and (ii) "Total Value" shall
mean, in the case (A) or (B) above, an amount equal to the sum of the aggregate
fair market value of any debt assumed, any equity or debt securities or other
property issued by the Corporation or any of its subsidiaries to any party, and
any cash consideration paid by the Corporation or any of its subsidiaries to any
party pursuant to the Transaction or, in the case of (C) above, an amount equal
to the sum of any cash paid, or equity or debt securities issued to, the
Corporation or its stockholders pursuant to the Transaction. It is agreed that
the Consultant shall not be paid a fee with respect to the Reliant Interactive
Media Corp. transaction.
(c) Upon the occurrence of any equity financing by the
Corporation, the Corporation will pay a fee equal to one percent (1%) of the
funds raised by the Corporation pursuant to such financing.
7. Term. This Agreement shall commence as of the date hereof and
shall remain in effect through _________, 2007, unless (i) terminated earlier
upon 48 hours notice by either
-2-
party or (ii) the Consultant or any of its affiliates shall cease to own at
least 20% of the issued and outstanding capital stock of the Corporation prior
to the consummation of any Transaction.
8. Termination Upon Breach. Either the Corporation or the
Consultant may terminate this Agreement in the event of the breach of any of the
material terms or provisions of this Agreement by the other party, which breach
is not cured within 10 business days after notice of the same is given to the
party alleged to be in breach by the other party.
9. Standard of Care. The Consultant (including any person or
entity acting for or on behalf of the Consultant) shall not be liable for any
mistakes of fact, errors of judgment, for losses sustained by the Corporation or
for any acts or omissions of any kind (including acts or omissions of the
Consultant), unless caused by intentional misconduct of the Consultant.
10. Indemnification of Consultant. The Corporation hereby agrees
to indemnify and hold harmless the Consultant and its present and future
officers, directors, affiliates, employees and agents ("Indemnified Parties") to
the fullest extent permitted by law. The Corporation further agrees to reimburse
the Indemnified Parties on a monthly basis for any cost of defending any action
or investigation (including attorneys' fees and expenses), subject to an
undertaking from such Indemnified Party to repay the Corporation if such party
is determined not to be entitled to such indemnity.
11. Assignment. Without the consent of the Consultant, the
Corporation shall not assign, transfer or convey any of its rights, duties or
interest under this Agreement, nor shall it delegate any of the obligations or
duties required to be kept or performed by it hereunder. The Consultant shall
not assign, transfer or convey any of its rights, duties or interests under this
Agreement, nor shall it delegate any of the obligations or duties required to be
kept or performed by it under this Agreement, except that the Consultant may
transfer its rights and obligations hereunder to one of its affiliates.
12. Notices. All notices, demands, consents, approvals and
requests given by either party to the other hereunder shall be in writing and
shall be personally delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, to the parties at the following addresses:
If to the Corporation: Thane International, Inc.
78 - 000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: Board of Directors
If to the Consultant: H.I.G. Capital LLC, Inc.
0000 Xxxxxxxx Xxx Xxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Managing
Director
-3-
Any party may at any time change its respective address by sending written
notice to the other party of the change in the manner hereinabove prescribed.
13. Severability. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or enforceable, shall not be affected thereby, and each term
or provision of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
14. No Waiver. The failure by any party to exercise any right,
remedy or elections herein contained or permitted by law shall not constitute or
be construed as a waiver or relinquishment for the future exercise of such
right, remedy or election, but the same shall continue and remain in full force
and effect. All rights and remedies that any party may have at law, in equity or
otherwise upon breach of any term or condition of this Agreement, shall be
distinct, separate and cumulative rights and remedies and no one of them,
whether exercised or not, shall be deemed to be in exclusion of any other right
or remedy.
15. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the matters herein contained and any
agreement hereafter made shall be ineffective to effect any change or
modification, in whole or in part, unless such agreement is in writing and
signed by the party against whom enforcement of the change or modification is
sought.
16. Governing Laws. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without reference
to the laws of any other state.
* * *
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Consulting Agreement to be duly exercised by their authorized
representatives as of the date first above written.
THANE INTERNATIONAL, INC.
By:
----------------------------------------
Name:
--------------------------------------
Its:
---------------------------------------
H.I.G. CAPITAL, LLC
By:
----------------------------------------
Name:
--------------------------------------
Its:
---------------------------------------
-5-
