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EXHIBIT 10.7
XXXXXXX/XXXXXX ASSOCIATES, L.P.
00 XXXXX XXXXXX
XXX XXXX, XX 00000
, 1997
Conserver Corporation of America
0000 XxXxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, President
Gentlemen:
This letter, when executed by the parties hereto, will
constitute an agreement between Conserver Corporation of America (the "Company")
and Xxxxxxx/Xxxxxx Associates, L.P. ("JMA") pursuant to which the Company agrees
to retain JMA and JMA agrees to be retained by the Company under the terms and
conditions set forth below.
1. The Company hereby retains JMA to perform consulting
services related to corporate finance and other financial services matters, and
JMA hereby accepts such retention. In this regard, subject to the terms set
forth below, JMA shall furnish to the Company advice and recommendations with
respect to such aspects of the business and affairs of the Company as the
Company shall, from time to time, reasonably request upon reasonable notice. In
addition, JMA shall hold itself ready to assist the Company in evaluating and
negotiating particular contracts or transactions, if requested to do so by the
Company, upon reasonable notice.
2. As compensation for the services described in paragraph 1
above, the Company shall pay to JMA a fee of $100,000, for the full term of 36
months, payable in 36 equal monthly installments. In addition to the
compensation payable in this Section 2, the Company will reimburse JMA for any
and all reasonable expenses incurred by JMA in the performance of its duties
under paragraphs 3 or 4 hereunder, and JMA shall account for such expenses to
the Company. Such reimbursement shall accumulate and be paid monthly. No
expenses in excess of $1,000 shall be incurred or reimbursed without the prior
consent of the Company. Nothing contained herein shall prohibit JMA from
receiving any additional compensation under paragraphs 3 and 4 herein or
otherwise.
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3. In addition, JMA shall hold itself ready to assist the
Company in evaluating and negotiating particular contracts or transactions, if
requested to do so by the Company, upon reasonable notice, and will undertake
such evaluations and negotiations upon prior written agreement as to additional
compensation to be paid by the Company to JMA with respect to such evaluations
and negotiations.
4. The Company and JMA further acknowledge and agree that JMA
may act as a finder or financial consultant in various business transactions in
which the Company may be involved, such as mergers, acquisitions or joint
ventures. The Company hereby agrees that if in the event JMA shall first
introduce to the Company another party or entity, and that as a result of such
introduction, a transaction is consummated, the Company shall pay to JMA a fee
equal to five percent (5%) of the amount up to $5 million and two and one half
percent (2-1/2%) of the excess, of the consideration received by the Company
from parties introduced to the Company by JMA in non-financing related
transactions (including mergers, acquisitions, joint ventures and other business
transactions) consummated by the Company with a party introduced to the Company
by JMA. Such fee shall be paid in cash at the closing of the transaction to
which it relates or at such time as the consideration is received or paid by the
Company, and shall be payable whether or not the transaction involves stock, or
a combination of stock and cash, or is made on the installment sale basis.
5. All obligations of JMA contained herein shall be subject to
JMA's reasonable availability for such performance, in view of the nature of the
requested service and the amount of notice received. JMA shall devote such time
and effort to the performance of its duties hereunder as JMA shall determine is
reasonably necessary for such performance. JMA may look to such others for such
factual information, investment recommendations, economic advice and/or
research, upon which to base its advice to the Company hereunder, as it shall
deem appropriate. The Company shall furnish to JMA all information relevant to
the performance by JMA of its obligations under this Agreement, or particular
projects as to which JMA is acting as advisor, which will permit JMA to know all
facts material to the advice to be rendered, and all material or information
reasonably requested by JMA. In the event that the Company fails or refuses to
furnish any such material or information reasonably requested by JMA, and thus
prevents or impedes JMA's performance hereunder, any inability of JMA to perform
shall not be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or
restrict the right of JMA or of any partner, employee, agent or
representative of JMA, to be a partner, director, officer,
employee, agent or representative of, or to engage in, any other
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business, whether of a similar nature or not, nor to limit or restrict the right
of JMA to render services of any kind to any other corporation, firm, individual
or association.
7. JMA will hold in confidence any confidential information
which the Company provides to JMA pursuant to this Agreement unless the Company
gives JMA permission in writing to disclose such confidential information to a
specific third party. In addition, all confidential information which the
Company provided to JMA in connection with its initial public offering shall be
considered confidential information for purposes of this Agreement.
Notwithstanding the foregoing, JMA shall not be required to maintain
confidentiality with respect to information (i) which is or becomes part of the
public domain through no fault of JMA; (ii) of which it had independent
knowledge prior to disclosure; (iii) which comes into the possession of JMA in
the normal and routine course of its own business from and through independent
non-confidential sources; or (iv) which is required to be disclosed by JMA by
governmental requirements. If JMA is requested or required (by oral questions,
interrogatories, requests for information or document subpoenas, civil
investigative demands, or similar process) to disclose any confidential
information supplied to it by the Company, or the existence of other
negotiations in the course of its dealings with the Company or its
representatives, JMA shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
8. Each of the Company and JMA agrees to indemnify and hold
harmless each other, and their respective partners, employees, agents,
representatives and controlling persons (and the officers, directors, employees,
agents, representatives and controlling persons of each of them) from and
against any and all losses, claims, damages, liabilities, costs and expenses
(and all actions, suits, proceedings or claims in respect thereof) and any legal
or other expenses in giving testimony or furnishing documents in response to a
subpoena or otherwise (including, without limitation, the cost of investigating,
preparing or defending any such action, suit, proceeding or claim, whether or
not in connection with any action, suit, proceeding or claim in which JMA or the
Company is a party), as and when incurred, directly or indirectly, caused by,
relating to, based upon or arising out of JMA's service pursuant to this
Agreement. The Company further agrees that JMA shall incur no liability to the
Company or any other party on account of this Agreement or any acts or omissions
arising out of or related to the actions of JMA relating to this Agreement or
the performance or failure to perform any services under this Agreement except
for JMA's intentional or willful misconduct. This paragraph shall survive the
termination of this Agreement. Notwithstanding the foregoing, no party otherwise
entitled to indemnification shall be entitled thereto to the extent such party
has been determined to have acted in a manner which has been deemed gross
negligence or
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wilful misconduct regarding the matter for which indemnification is
sought herein.
9. This Agreement may not be transferred, assigned or
delegated by any of the parties hereto without the prior written consent of the
other party hereto.
10. The failure or neglect of the parties hereto to insist, in
any one or more instances, upon the strict performance of any of the terms or
conditions of this Agreement, or their waiver of strict performance of any of
the terms or conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
11. This Agreement is for a term of thirty-six (36) months and
may not be terminated by the Company. This Agreement may be terminated by JMA at
any time upon 30 days' notice; provided JMA shall repay any portion of their fee
which was not earned on the effective date of such termination. Paragraphs 4, 7
and 8 shall survive the expiration or termination of this Agreement under all
circumstances.
12. Any notices hereunder shall be sent to the Company and to
JMA at their respective addresses set forth above. Any notice shall be given by
registered or certified mail, postage prepaid, and shall be deemed to have been
given when deposited in the United States mail. Either party may designate any
other address to which notice shall be given, by giving written notice to the
other of such change of address in the manner herein provided.
13. This Agreement has been made in the State of New York and
shall be construed and governed in accordance with the laws thereof without
giving effect to principles governing conflicts of law.
14. This Agreement contains the entire agreement between the
parties, may not be altered or modified, except in writing and signed by the
party to be charged thereby, and supersedes any and all previous agreements
between the parties relating to the subject matter hereof.
15. This Agreement shall be binding upon the parties hereto,
the indemnified parties referred to in Section 7, and their respective heirs,
administrators, successors and permitted assigns.
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If you are in agreement with the foregoing, please execute two
copies of this letter in the space provided below and return them to the
undersigned.
Very truly yours,
XXXXXXX-XXXXXX ASSOCIATES, L.P.
By:_____________________________
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN
CONSERVER CORPORATION OF AMERICA
By:___________________________
Xxxxxxx Xxxxx
President
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