EXHIBIT 10.71
FINANCIAL ADVISORY AND INVESTMENT BANKING AGREEMENT
THIS FINANCIAL ADVISORY AND INVESTMENT BANKING AGREEMENT is made as of the
1st day of April, 2006 by and between North Coast Securities Corporation, a
California corporation (the "Agent"), and U.S. Helicopter Corporation, a
Delaware corporation (collectively with its affiliates the "Company").
RECITALS:
WHEREAS, the Company wishes to engage the Agent to render financial
advisory and investment banking services to the Company and the Agent wishes to
render such services, all as provided below.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained in this Agreement, and of other consideration (the receipt and
sufficiency of which are acknowledged by each Party), the Parties agree as
follows:
ARTICLE 1
FINANCIAL ADVISORY AND INVESTMENT BANKING SERVICES
1.1 FINANCIAL ADVISORY AND INVESTMENT BANKING SERVICES
(a) For the 24-month period commencing on the effective date of this
Agreement as set forth in Section 1.4 below (the "Effective Date"), the Agent
shall provide the Company with such regular and customary financial advice as is
reasonably requested by the Company, provided that the Agent shall not be
required to undertake duties not reasonably within the scope of the financial
advisory or investment banking services contemplated by this Agreement. It is
understood and acknowledged by the Parties that the value of the Agent's advice
is not readily quantifiable, and that the Agent shall be obligated to render
advice upon the request of the Company, in good faith, but shall not be
obligated to spend any specific amount of time in so doing. The Agent's duties
may include, but will not necessarily be limited to, providing recommendations
concerning the following financial and related matters:
1. Disseminating information about the Company to the investment
community at large;
2. Rendering advice and assistance in connection with the preparation
of reports or other communications to shareholders or creditors;
3. Assisting in the Company's financial public relations;
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4. Arranging, on behalf of the Company, at appropriate times, meetings
with securities analysts or other representatives of major regional
and national investment banking firms;
5. Rendering advice with regard to any of the following corporate
finance matters:
i. changes in the capitalization of the Company;
ii. changes in the Company's financial structure;
iii. redistribution of shareholdings of the Company's stock;
iv. offerings of securities in public transactions;
v. sales of securities in private transactions;
vi. alternative uses of corporate assets;
vii. structure and use of debt; and
viii. sales of stock by insiders pursuant to Rule 144 or
otherwise.
(b) In addition to the foregoing, the Agent agrees to furnish advice to
the Company as reasonably requested by the Company in connection with (i) the
acquisition and/or merger of or with other companies, divestiture of assets or
any other similar transaction, or the sale of the Company itself (or any
significant percentage of the Company or its assets, subsidiaries or affiliates
thereof), and (ii) bank financings or any other financing from financial
institutions or venture capitalists (including but not limited to lines of
credit, performance bonds, letters of credit, loans or other financings).
(c) For the 24-month period commencing on the Effective Date (as defined
below), the Consultant shall provide the Company with such regular and customary
advice regarding a potential promotional offering to flyers on the Company's
helicopter shuttle service of common stock of the Company (the "Promotional
Offering"), which stock shall be registered in a registration statement to be
filed by the Company with the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended (the "1933 Act"), as is reasonably
requested by the Company, provided that the Consultant shall not be required to
undertake duties not reasonably within the scope of the advisory services
contemplated by this Agreement. The Consultant's duties may include, but will
not necessarily be limited to, providing recommendations concerning the
following matters:
1. Rendering advice and assistance in connection with the Promotional
Offering;
2. Assisting in the Company's investor relations relating to the
Promotional Offering; and
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3. Assisting in the Company's financial public relations relating to the
Promotional Offering.
(d) The Agent shall render such other financial advisory and investment
and/or investment banking services as may from time to time be agreed upon by
the Agent and the Company.
1.2 INFORMATION
In connection with Agent's activities on the Company's behalf, the Company
will cooperate with Agent and will furnish Agent with all information and data
concerning the Company which Agent reasonably believes appropriate to the
performance of services contemplated by this Agreement (all such information so
furnished being the "Information") and will provide Agent with reasonable access
to the Company's officers, directors, employees, independent accountants and
legal counsel. The Company recognizes and confirms that Agent (i) will use and
rely primarily on the Information and on information available from generally
recognized public sources in performing the services contemplated by the
Agreement, without having independently verified same, (ii) does not assume
responsibility for the accuracy or completeness of the Information and such
other information and (iii) will not make an independent appraisal of any of the
Company's assets. The Information to be furnished by the Company, when
delivered, will be, to the best of the Company's knowledge, true and correct in
all material respects and will not contain any material misstatements of fact or
omit to state any material fact necessary to make the statements contained
therein not misleading. The Company will promptly notify Agent if it learns of
any material inaccuracy or misstatement in, or material omission from any
information thereto delivered to Agent. Agent agrees to keep the Information
confidential and only to release the Information with the consent of the
Company. Upon termination of this Agreement for whatever reason, Agent will
return the Information (without keeping any copies thereof) forthwith on demand
by the Company. Agent on its part represents, warrants, and agrees that it has
and at all times while it is performing services under this Agreement it will
comply with all laws, rules, and regulations applicable to it in connection with
the services it performs under this Agreement.
1.3 COMPENSATION
(a) In consideration for the services to be rendered by the Consultant to the
Company pursuant to this Agreement, the Company shall issue to the Consultant on
the Effective Date warrants to purchase 350,000 shares of common stock of the
Company, with an exercise price of $0.75 per share, a term of five years and all
other terms substantially the same as those of other warrants issued by the
Company (the "Warrants"). However, in the event that, on the six-month
anniversary of the Effective Date of this Agreement, the Company determines in
its sole discretion that it is not reasonably satisfied with Consultant's
services through such date, then the Company shall have the sole right to cancel
a total of 87,500 Warrants.
(b) The shares underlying the warrants (the "Shares" and together with the
Warrants, the "Securities") shall be entitled to be included in a registration
statement to be filed by the Company with the SEC under the 1933 Act; provided,
however, the Consultant agrees to lock-up such Shares acquired upon exercise of
the Warrants for a period of 9 months from the Effective Date.
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1.4 EFFECTIVE DATE
This Agreement shall become effective on April 1, 2006.
ARTICLE 2
GENERAL
2.1 INDEMNIFICATION
The Company agrees to indemnify and hold harmless Agent, to the fullest
extent permitted by law, from and against any and all losses, claims, damages,
liabilities, obligations, penalties, judgments, awards, costs, expenses and
disbursements (and any and all actions, suits, proceedings and investigations in
respect thereof and any and all legal and other costs, expenses and
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise, including, without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or defending
any such action, suit, proceeding or investigation (whether or not in connection
with litigation in which Agent is a party)), directly or indirectly, caused by,
relating to, based upon, arising out of or in connection with Agent's acting for
the Company, including, without limitation, any act or omission by Agent in
connection with its acceptance of or the performance or nonperformance of its
obligations under the Agreement, or otherwise arising from this Agreement;
provided, however, that such indemnity agreement shall not apply to any portion
of any such loss, claim, damage, liability, obligation, penalty, judgment,
award, cost, expense or disbursement to the extent it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal) to
have resulted primarily from the negligence, gross negligence or willful
misconduct of Agent, in which case Agent shall indemnify the Company to the same
extent as set forth herein with respect to the Company's indemnification
obligations to Agent.
These Indemnification provisions shall be in addition to any liability
which a party may otherwise have to the other party or the persons indemnified
below in this sentence and shall extend to the following: the parties and their
respective affiliated entities, directors, officers, employees, legal counsel,
agents and controlling persons (within the meaning of the federal securities
law). All references to a party in these Indemnification provisions shall be
understood to include any and all of the foregoing.
If any action, suit, proceeding or investigation is commenced, as to which
a party proposes to demand indemnification, it shall notify the other party with
reasonable promptness; provided, however, that the indemnifying party shall be
relieved from its obligations hereunder to the extent a failure by the
indemnified party to notify the indemnifying party with reasonable promptness
results in a significant increase in the indemnifying party's obligations
hereunder. The indemnified party shall have the right to retain counsel of its
own choice to represent it, which counsel shall be reasonably acceptable to the
indemnifying party, and the indemnifying party shall pay the reasonable fees,
expenses and disbursements of such counsel; and such counsel shall, to the
extent consistent with its professional responsibilities, cooperate with the
indemnifying party and any counsel designated by the indemnifying party. The
indemnifying party shall be liable for any settlement of any claim against the
indemnified party made with the indemnifying party's written consent, which
consent shall not be unreasonably withheld. The indemnifying party shall not,
without prior written consent of the indemnified party, settle or compromise any
claim, or permit a default or consent to the entry of any judgment in respect
thereof, unless such settlement, compromise or consent includes, as a condition
or term thereof, the giving by the claimant to the indemnified party of an
unconditional and irrevocable release from all liability in respect of such
claim.
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In order to provide for just and equitable contribution, if a claim for
indemnification pursuant to these Indemnification provisions is made but it is
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) that such indemnification may not be enforced in such case, even
though the express provisions hereof provide for indemnification in such case,
then the Company, on the one had, and Agent, on the other hand, shall contribute
to the losses, claims, damages, obligations, penalties, judgments, award,
liabilities, costs, expenses and disbursements to which the indemnified persons
may be subject in accordance with the relative benefits received by the Company,
on the one hand, and Agent, on the other hand, in connection with the
statements, acts or omissions which resulted in such losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses or
disbursements and the relevant equitable considerations shall also be
considered. No person found liable for a fraudulent misrepresentation shall be
entitled to contribution from any person who is not also found liable for such
fraudulent misrepresentation. Notwithstanding the foregoing, Agent shall not be
obligated to contribute any amount hereunder that exceeds the amount of fees
previously received by Agent pursuant to the Agreement nor shall the Company be
obligated to contribute any amount hereunder that exceeds the amount of the net
proceeds received by Company from transactions consummated with the advise or
other services of the Agent as contemplated by this Agreement.
Neither termination nor completion of the engagement of Agent referred to
the above shall affect these Indemnification provisions which shall continue to
remain operative and in full force and effect.
2.2.1 INTERPRETATION AND ENFORCEMENT
(a) The benefits of this Agreement shall inure to the parties hereto,
their respective successors and assigns and to the indemnified parties hereunder
and their respective successors and assigns and representatives, and the
obligations and liabilities assumed in this Agreement by the parties hereto
shall be binding upon their respective successors and assigns.
(b) Each of the Company and Agent (and, to the extent permitted by law, on
behalf of their respective equity holders and creditors) hereby knowingly,
voluntarily and irrevocably waives any right it may have to a trial by jury in
respect of any claim based upon, arising out of or in connection with this
Agreement and the transactions contemplated hereby. Each of the Company and
Agent hereby certify that no representative or agent of the other party has
represented expressly or otherwise that such party would not seek to enforce the
provisions of this waiver. Further each of the Company and Agent acknowledges
that each party has been induced to enter this Agreement by, inter alia, the
provisions of this Section.
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(c) If it is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) that any term or provision hereof
is invalid or unenforceable, (i) the remaining terms and provisions hereof shall
be unimpaired and shall remain in full force and effect and (ii) the invalid or
unenforceable provision or term shall be replaced by a term or provision that is
valid and enforceable and that comes closest to expressing the intention of such
invalid or unenforceable term or provision.
(d) This Agreement embodies the entire agreement and understanding of the
parties hereto and supersedes any and all prior agreements, arrangements and
understanding relating to the matters provided for herein. No alteration,
waiver, amendment, change or supplement hereto shall be binding or effective
unless the same is set forth in writing signed by a duly authorized
representative of each party.
(e) This Agreement does not create, and shall not be construed as
creating, rights enforceable by any person or entity not a party hereto, except
those entitled thereto by virtue of the indemnification provisions hereof. The
Company acknowledges and agrees that with respect to the services to be rendered
by Agent, Agent is not and shall not be construed as a fiduciary of the Company
and shall have no duties or liabilities to the equity holders or creditors of
the Company or any other person by virtue of this Agreement and the retention of
Agent hereunder, all of which are hereby expressly waived. The Company also
agrees that Agent shall not have any liability (including without limitation,
liability for losses, claims, damages, obligations, penalties, judgments,
awards, liabilities, costs, expenses or disbursements resulting from any
negligent act or omission of Agent, whether direct or indirect, in contract,
tort or otherwise) to the Company or to any person (including, without
limitation, equity holders and creditors of the Company) claiming through the
Company for or in connection with the engagement of Agent, this Agreement and
the transactions contemplated hereby, except for liabilities which arise as a
result of the negligence, gross negligence or willful misconduct of Agent. The
Company acknowledges that Agent was induced to enter into this Agreement by,
INTER ALIA, the provisions of this Section.
2.3 REPRESENTATIONS
(a) The Company has all requisite corporate power and authority to enter
into this Agreement and the transactions contemplated hereby. This Agreement has
been duly and validly authorized by all necessary corporate action on the part
of the Company and has been duly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company, enforceable in
accordance with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws).
(b) Agent has all requisite corporate power and authority to enter into
this Agreement, once executed by Agent's officers. This Agreement has been duly
and validly authorized by all necessary corporate action on the part of Agent
and has been duly executed and delivered by Agent and constitutes a legal, valid
and binding agreement of Agent, enforceable in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy, insolvency or similar
laws).
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2.4 APPLICABLE LAW
The validity and interpretation of this Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of Florida
applicable to agreements made and to be fully performed therein (excluding such
state's conflicts of laws rules).
2.5 COUNTERPARTS
This Agreement may be executed in any number of counterparts. Each
executed counterpart shall be deemed to be an original. All executed
counterparts taken together shall constitute one Agreement.
IN WITNESS OF their agreement, the Parties have duly executed this Agreement as
of the date first written above.
NORTH COAST SECURITIES CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
President and Chief Executive Officer
U.S. HELICOPTER CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President and Chief Executive Officer
