EXHIBIT 10.1
AGREEMENT FOR INVESTMENT BANKING SERVICES
THIS AGREEMENT is entered into this November 25, 1996, by and between
GORGES/QUIK-TO-FIX FOODS, INC., a Delaware corporation (the "Corporation"), and
CGW SOUTHEAST MANAGEMENT III, L.L.C., a Delaware limited liability company
("CGW").
BACKGROUND
CGW has heretofore provided investment banking services to the Company in
connection with the transactions contemplated by that certain Asset Purchase
Agreement, dated October 17, 1996, among the Corporation, Tyson Foods, Inc.,
Tyson Holding Company and Gorges Foodservice, Inc. (the "Asset Purchase
Agreement"), and in connection with structuring and negotiating certain senior
credit facilities and the terms of the issuance and sale by the Corporation of
senior subordinated notes and in arranging for contributions to the equity
capital of the Corporation (collectively, the "Financings"). The Corporation
desires to continue to engage CGW to provide such investment banking services in
connection with the consummation of the transactions contemplated by the Asset
Purchase Agreement and the Financings.
AGREEMENT
For and in consideration of the above premises and the mutual covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties hereto agree as
follows:
1. SCOPE OF CONSULTING SERVICES. CGW has provided and agrees to continue
to provide to the Corporation investment banking and advisory services in
connection with the structuring and negotiation of the transactions contemplated
by the Asset Purchase Agreement and the Financings and the consummation of such
transactions.
2. COMPENSATION. For the services rendered by CGW as herein described,
upon consummation of the transactions provided for in the Asset Purchase
Agreement and the Financings the Corporation shall pay to CGW Two Million Six
Hundred Fifty Thousand Dollars ($2,650,000) (the "Fee"). The Fee shall be paid
at the time of the consummation of such transactions by wire transfer of
immediately available funds.
3. EXPENSES. The Corporation shall reimburse CGW for all of CGW's costs
and expenses (other than ordinary overhead) reasonably incurred in connection
with providing the investment banking services hereunder. Such reimbursements
shall be paid to CGW upon submission by CGW of all documentation ordinarily
required by the Corporation's policy on reimbursement of expenses.
4. INDEPENDENT CONTRACTOR. CGW is and shall be an independent
contractor, and no employment or agency relationship between the Corporation and
CGW is intended to be created hereby.
5. INDEMNIFICATION.
(a) The Corporation shall indemnify and hold harmless CGW and its
affiliates, their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act
of 1933 or Section 20(a) of the Securities Exchange Act of 1934),
if any, employees and agents of CGW or any of CGW's affiliates
(each such person being an "Indemnified Person") from and against
any losses, claims, damages or liabilities related to, arising
out of or in connection with CGW's engagement hereunder.
(b) The Corporation shall reimburse each Indemnified Person for all
reasonable expenses (including fees and expenses of counsel) as
they are incurred in connection with investigating, preparing,
pursuing or defending any action, claim, suit, investigation or
proceeding related to, arising out of or in connection with CGW's
engagement hereunder, whether or not pending or threatened and
whether or not any Indemnified Person is a party; provided
however, that if a final judicial determination is made that any
losses, claims, damages or liabilities (or expenses related
thereto) have resulted from the bad faith or gross negligence of
any Indemnified Person, then each Indemnified Person will remit
to the Corporation any amounts reimbursed under this subparagraph
8(b).
(c) The Corporation will not be responsible for any losses, claims,
damages or liabilities (or expenses related thereto) that are
finally judicially determined to have resulted from the bad faith
or gross negligence of any Indemnified Person. The Corporation
further agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or
otherwise) to the Corporation or to any person claiming through
the Corporation (including, without limitation, equity holders
and creditors of the Corporation) for or in connection with CGW's
engagement hereunder except for any such liability for losses,
claims, damages or liabilities incurred by the Corporation that
are finally judicially determined to have resulted from the bad
faith or gross negligence of such Indemnified Person. If
multiple claims are brought against CGW in an arbitration, with
respect to at least one of which indemnification is permitted
under applicable law and provided for under this Agreement, the
Corporation agrees that any arbitration award shall be
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conclusively deemed to be based on claims as to which
indemnification is permitted and provided for, except to the
extent the arbitration award expressly states that the award, or
any portion thereof, is based solely on a claim as to which
indemnification is not available.
(d) The Corporation agrees that each Indemnified Person is entitled
to retain separate counsel of its choice in connection with any
of the matters to which the indemnification and reimbursement
commitments set forth in subparagraphs 8(a) and 8(b) above
relate.
(e) No Indemnified Person seeking indemnification, reimbursement or
contribution under this Agreement will, without the Corporation's
prior written consent, settle, compromise, consent to the entry
of any judgment in or otherwise seek to terminate any action,
claim, suit, investigation or proceeding referred to in this
subparagraph 8(a) above.
(f) The foregoing rights to indemnity and contribution shall be in
addition to any rights that CGW and/or any other Indemnified
Person may have at common law or otherwise and shall remain in
full force and effect following the completion or any termination
of CGW's engagement. The Corporation hereby consents to personal
jurisdiction and to service and venue in any court in which any
claim which is subject to this Agreement is brought against CGW
or any other Indemnified Person.
(g) The Corporation and CGW agree that if any indemnification or
reimbursement sought pursuant to this Section 8 is finally
judicially determined to be unavailable (except by reason of the
gross negligence or bad faith of any Indemnified Person), then,
whether or not CGW is the person entitled to indemnification or
reimbursement, the Corporation and CGW shall contribute to the
losses, claims, damages, liabilities and expenses for which such
indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits to
the Corporation on the one hand, and CGW on the other, in
connection with the transaction to which such indemnification or
reimbursement relates, and other equitable considerations;
provided however, that in no event shall the amount to be
contributed by CGW exceed the amount of the fee actually received
by CGW hereunder.
6. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
GORGES/QUIK-TO-FIX FOODS, INC.
By: /s/ Xxxxx X. X'Xxxxxxx
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Name: Xxxxx X. X'Xxxxxxx
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Title: President
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CGW SOUTHEAST MANAGEMENT L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Managing Director
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