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EXHIBIT 10.13
FINANCIAL ADVISORY FEE AGREEMENT
This Financial Advisory Fee Agreement (the "Agreement") is made and entered into
as of the 28th day of June, 1999 (the "Effective Date"), by and among Probex
Corporation, a Colorado corporation ("Probex"), and Xxxxxxx X. Xxxxx Xx., a
Texas resident.
WHEREAS, Probex is desirous of engaging Noble in the capacity of financial
advisor specifically for the purpose of identifying and assisting Probex in
obtaining funding for the expansion of its operations, including but not limited
to, funding for the acquisition of certain sources of feedstock supplies and the
construction of one or more Probex plants (the "Proposed Investment").
NOW, THEREFORE, in consideration of the premises and the covenants, agreements
and obligations set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
covenant and agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
meanings indicated below:
"Advisor" means Noble, or his affiliates successors and assigns.
"Affiliate" of a person shall mean any other person that directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such person. For the purposes of this definition, "control"
means the power to direct the management and policies of a person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
"Additional Securities" means any debt or equity securities of Probex and/or any
of its Affiliates, issued after the Proposed Investment by any person included
on Exhibit "A" attached hereto and in accordance with the provisions set forth
in Section 3 of this Agreement.
"Approved Investor(s)" means those persons and their Affiliates listed on
Exhibit "A" attached hereto.
"Capital Provided" means the entire commitment made by an Approved Investor to
Probex at Closing (as defined below) regardless of whether such commitment is
for debt or equity.
"Closing" means the execution by Probex and an Approved Investor of binding
documentation evidencing the investment by an Approved Investor in the Proposed
Investment or in any Subsequent Transaction, regardless of whether such
investment takes the form of debt or equity.
"Subsequent Transaction" means any investment made by an Approved Investor in
Probex following and/or in addition to but under no circumstances including the
initial Proposed Investment and prior to May 28th, 2004.
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2. Fees Payable to Advisor, Upon Closing of the Proposed Investment. As
consideration for services rendered by the Advisor, should any one or more of
the Approved Investors provide funding for the Proposed Investment then the fees
described below shall be due and payable to the Advisor at Closing. The fee to
be paid to the Advisor shall be equal to the following:
(i) An amount in cash equal to six percent (6%) of the Capital Provided
by the Approved Investor(s); and
(ii) Five year warrants to purchase a number of shares of Probex common
stock equal to six percent (6%) of the Capital Provided divided by the price per
common share paid by the equity investors participating in the Proposed
Investment. The Advisor's exercise price for the warrants shall be the price per
common share paid by the equity investors participating in the Proposed
Investment. These warrants will be subject to a Warrant Holder's Agreement which
will be negotiated by the parties in good faith and will contain among other
things, a cashless conversion feature and registration rights commensurate with
those of the investors participating in the Proposed Investment.
3. Fees payable to the Advisor for Additional Capital Raised From Approved
Investors. If, prior to May 28, 2004, Probex issues any Additional Securities to
an Approved Investor, regardless of whether or not such investor participated in
the Proposed Investment, then the Advisor shall be deemed to have earned and
Probex shall be obligated to pay to Advisor (a) a cash fee equal to one percent
(1%) of the Capital Provided by the Approved Investor(s); and (b) five year
warrants equal to two percent (2%) of the Capital Provided with shares issued
based upon the formula outlined in 2 (a) (ii) above. The Advisor's exercise
price for these warrants shall be the price per common share paid by the equity
investors participating in the Subsequent Transaction. Such fees and warrants
will be due and payable to Advisor at the closing of such Subsequent
Transactions.
4. Expenses. Probex agrees to reimburse Advisor, upon request made from time to
time, for its reasonable out of-pocket expenses incurred in connection with
Advisor's activities under this Agreement.
5. Indemnification - Probex agrees to indemnify Advisor, and their respective
directors, officers, partners, employees, agents, and controlling persons
(Advisor and each such person being an "Indemnified Party") from and against any
and all losses, claims, damages and liabilities, joint or several, related to
the Proposed Investment or any transaction contemplated by this Agreement and
will reimburse any Indemnified Party for aft expenses (including fees and
expenses of counsel) as they are incurred in connection with the investigation
of, preparation for or defense of any pending or threatened claim or any action
or proceeding arising therefrom, whether or not such Indemnified Party is a
party and whether or not such claim action or proceeding is initiated or brought
by Probex. Probex will not be liable under the foregoing indemnification
provision to the extent that any loss, claim, damage or liability is found in a
final judgement by a court to have resulted from Advisor's gross negligence or
willful misconduct.
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6. Termination. Advisor's engagement hereunder may be terminated by either
Probex or the Advisor at any time after July 30, 1999 upon written notice to
that effect to the other party, it being understood that the provisions relating
to the payment of fees and expenses, indemnification's, contribution,
settlements and the role and duties of the Advisor and Probex shall survive any
such termination.
7. Miscellaneous Provisions.
(a) Relationship. This agreement does not create, and shall not be
construed to create, any joint venture or partnership between the parties. No
officer, employee, agent, servant, or independent contractor of the Advisor nor
their Affiliates shall at any time be deemed to be an employee, agent, servant,
or broker of Probex for any purpose whatsoever solely as a result of this
Agreement, and Advisor shall have no right or authority to assume or create any
obligation or liability, express or implied, on Probex's behalf, or to bind
Probex in any manner or thing whatsoever.
(b) Waiver. Notwithstanding anything to the contrary contained herein,
the failure of either party to seek a redress for violation, or to insist upon
the strict performance, of any covenant, agreement, provision, or condition
hereof shall not constitute a waiver of the terms of such covenant, agreement,
provision, or condition at subsequent times or of the terms of any other
covenant, agreement, provision, or condition, and each party shall have all
remedies provided herein with respect to any subsequent act which would have
originally constituted the violation hereunder.
(c) Governing Law. This Agreement and all questions relating to its
validity, interpretation, performance, and enforcement (including without
limitation, provisions concerning limitations of action), shall be governed by
and construed in accordance with the internal laws of the State of Texas,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary.
(d) Notices. Any notice, request, demand, consent or authorization
(hereinafter referred to as "Notice") required or permitted to be given under
this Agreement shall be in writing and shall be delivered either personally, by
courier or by facsimile to the address or facsimile number below:
If to Probex: If to Advisor:
Xx. Xxxxxx X. Xxxxxx
Probex Corporation Xx. Xxxxxxx X. Xxxxx Xx.
0000 XxXxx, Xxxxx 000 000 Xxxxxxxx Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Fax # (000) 000-0000 Fax # (000) 000-0000
(e) Entire Agreement. This Agreement constitutes the sole and only
agreement of the parties hereto and supersedes any prior understandings or
written or oral agreements between the parties respecting the subject matter
herein.
(f) Multiple Counterparts. This Agreement may be executed
simultaneously in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
together constitute one and the same instrument.
(g) Amendments. This Agreement shall not be amended, changed or modified or any
provision thereof waived or discharged except in writing by both parties.
(h) This Agreement shall be binding upon and inure to the benefit of the heirs,
personal representatives, successors and assigns of the parties hereto.
(i) Advisor may add names to Exhibit "A" from time to time, provided all such
additions must be approved by Probex in writing.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the Effective Date.
PROBEX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: CEO
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XXXXXXX X. XXXXX Xx.
By: /s/ Xxxxxxx Xxxxx, Jr.
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EXHIBIT A
1. Xxx Xxxxxxxxx
2. Xxx Xxxxx and Affiliated Companies
3. Xxxx Xxxxxx
