Exhibit 10.1
FINANCIAL ADVISORY AGREEMENT
THIS AGREEMENT (the "Agreement") is made effective , 1998
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between X.X. Xxxxxx & Company, L.L.C. ("Consultant") and Rosedale Decorative
Products Ltd. (hereinafter the "Company").
RECITALS
A. Company desires to be assured of the association and services of
Consultants in order to avail itself of Consultant's experience, skills and
abilities, and background and knowledge, to facilitate long range planning, and
to execute the Company's business and investment banking needs in an orderly and
efficient manner, and is therefore willing to engage Consultant upon the terms
and conditions herein contained.
B. Consultant agrees to be engaged and retained by the Company and upon
said terms and conditions.
NOW, THEREFORE, in consideration of the recitals, promises and
conditions in this Agreement, the Consultant and Company agree as follows:
1. Consulting Services. Company hereby retains Consultant to become the
investment banking consultant to the Company and to render such advice,
consultation and information to the Board of Directors and the officers of the
Company regarding general financial matters, including, but not limited to,
long-term financial planning, expansions, changes in capital structure,
shareholder relations, the raising of capital from public and private sources,
and investment banking transactions and services, as shall be requested in
writing by the President of the Company from time to time. Consultant agrees,
upon request, to make itself available to render such services as reasonably
requested by the President of the Company and within the scope of this
Agreement.
2. Term. Except as otherwise provided in Section 3(b) of this
Agreement, the term of this Agreement shall be for a period of two (2) years
commencing , 1998.
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3. Compensation of Consultants.
a. Advisory Fee. In exchange for the services provided hereunder,
the Company hereby agrees to pay Consultant an advisory fee equal to $24,000
per year during the term of this Agreement. The Company shall pay $48,000
(representing prepayment in full of the fees for the two-year term of this
Agreement) to Consultant on the closing date of the Company's public offering
of 1,000,000 shares of the Company's common stock, no par value ("Common
Stock") and 1,000,000 redeemable warrants to purchase Common Stock,
underwritten by Consultant.
b. Finder's Fees. In addition to the compensation and expenses
paid or payable to Consultant pursuant to Sections 3(a) and 4 hereof, the
Company agrees that, if a consultant, directly or indirectly, introduces the
Company, during the term of this Agreement, to any person or entity that
during the term hereof or within 18 months following the term hereof,
provides any investment capital, loan or any other equity or debt financing
to the Company or any affiliate thereof, or becomes a party to a merger,
acquisition, joint venture, private placement or other similar transaction
with the Company or any affiliate thereof, then the Company shall pay
Consultant a cash finder's fee. Each cash finder's fee payable to Consultant
under this Agreement shall be calculated as a percentage of the Transaction
Value (as defined herein) in accordance with the following scale:
5% on the first $1,000,000 of the Transaction Value;
4% on the amount from $1,000,001 to $2,000,000;
3% on the amount from $2,000,001 to $3,000,000;
2% on the amount from $3,000,001 to $4,000,000;
1% on the amount from $4,000,001 to $5,000,000;
1% on the amount in excess of $5,000,000.
"Transaction Value" shall mean the aggregate value of all
cash, securities and other property (i) paid to the Company, its affiliates or
their shareholders in connection with any transaction referred to above
involving any investment in or acquisition of the Company or any affiliates (or
the assets of either), (ii) paid by the Company or any affiliate in any such
transaction involving an investment in or acquisition of another party or its
equity holdings by the Company or any affiliate, or (iii) paid or contributed by
the Company or any affiliate and by the other party or parties in the event of
any such transaction involving a merger, consolidation, joint venture or similar
joint enterprise or undertaking. The value of any such securities (whether debt
or equity) or other property shall be the fair market value thereof as
determined by mutual agreement of the Company and the Consultants or by an
independent appraiser jointly selected by the Company and the Consultant.
4. Expenses. Company agrees to pay all reasonable business expenses
authorized in advance by Company in writing and incurred by Consultant in
furtherance of the business of Company, including travel, food, lodging and
entertainment expenses, upon presentation by Consultant of receipt in form
reasonably satisfactory to Company.
5. Relationship of Parties. This Agreement shall not constitute an
employer-employee relationship. It is the intention of each party that each
Consultant shall be an independent contractor and not an employee of the
Company. Consultant shall not have the authority to act as the agent of the
Company except when such authority as specifically delegated to Consultant by
the Company. Subject to the express provisions herein, the manner and means
utilized by Consultant in the performance of Consultant's services hereunder
shall be under the sole control of the Consultant.
6. Liability of Consultant. The Company acknowledges that all opinions
and advice, whether oral or written, given by Consultant to the Company in
connection with this Agreement are
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intended solely for the benefit and use of the Company in considering the
transaction to which they relate, and the Company agrees that no person or
entity other than the Company shall be entitled to make use of or rely upon the
advice of Consultants to be given hereunder, and no such opinion or advice shall
be used by the Company for any other purpose or reproduced, disseminated, quoted
or referred to by the Company in communications with third parties at any time,
in any manner or for any purpose, nor may the Company make any public reference
to Consultant or use Consultant's name in any annual report or any other report
or release of the Company without Consultant's prior written consent, except
that the Company may, without Consultant's further consent, disclose this
Agreement (but not the information provided to the Company by Consultant) in the
Company's filings with the Securities and Exchange Commission, if such
disclosure is required by law.
7. Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be deemed to be properly given when personally
served in writing or when deposited in the United States mail, postage prepaid,
addressed to the other party at the address appearing at the end of this
Agreement. Either party may change its address by written notice make in
accordance with this Section.
8. Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective legal
representatives, administrators, executors, successors, subsidiaries and
affiliates.
9. Governing Law. This Agreement is made and shall be governed and
construed in accordance with the laws of the State of Georgia.
10. Assignment. Any attempt by either party to assign any rights,
duties or obligations which arise under this Agreement without the prior written
consent of the other party shall be void, and shall constitute a breach of the
terms of this Agreement.
11. Entire Agreement, Modifications. This Agreement constitutes the
entire agreement between the Company and the Consultant. No promises,
guarantees, inducements or agreements, oral or written, expressed or implied,
have been made other than as contained in this Agreement. This Agreement can
only be modified or changed in writing signed by the party or parties to be
charged.
12. Termination. This Agreement shall automatically terminate after the
initial two (2) year term. If terminated by the Company, such action shall not
alter Company's obligation to pay Consultant the agreed upon full compensation
described in this Agreement.
13. Litigation Expenses. If any action is brought by either party to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and disbursements in addition to
any other relief to which it may be entitled.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date indicated at the beginning of this Agreement.
X.X. Xxxxxx & Company, L.L.C.
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Dated:
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Name:
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Title:
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Rosedale Decorative Products Ltd.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0
Dated:
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Name:
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Title:
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