AMENDED AND RESTATED ADVISORY AGREEMENT
AMENDED
AND RESTATED ADVISORY AGREEMENT
THIS
AMENDED AND RESTATED ADVISORY AGREEMENT (this “Agreement”)
is
made and entered into as of July 1, 2007, by and between Greenwave Partners
LLC,
a Colorado limited liability company (“Greenwave”),
and
G8Wave, Inc., a Delaware corporation (the “Company,”
and
together with Greenwave, collectively referred to as the “Parties,
and
each individually a “Party”).
BACKGROUND
A. WHEREAS,
Greenwave and the Company entered into that certain Advisory Agreement, dated
March 30, 2007 (the “Original
Agreement”),
pursuant to which the Company
contracted to receive, for itself and its subsidiaries, transaction, financial
and management advisory services from Greenwave and thereby obtain the benefit
of Greenwave’s experience in financings, recapitalizations, mergers,
acquisitions, buyouts, industry consolidations, and business and financial
management generally and its knowledge of the Company’s financial and business
affairs in particular (the “Services”),
on
the terms and conditions set forth therein.
B. WHEREAS,
the Company is considering entering into a transaction pursuant to which a
publicly-traded
company (“PubCo”)
will
acquire by merger (the “Merger”)
all of
the issued and outstanding capital stock and the business of the Company in
exchange for the issuance by Pubco of shares of its common stock to the
Company’s stockholders. As
a
result of the Merger,
the
Company would be the surviving entity of the Merger and a wholly-owned
subsidiary of PubCo.
C. WHEREAS,
pursuant to Section 10 of the Original Agreement, the Parties desire to amend
and restate the Original Agreement in its entirety, as set forth herein, such
that the Original Agreement, as amended and restated herein, shall continue
in
full force and effect.
NOW,
THEREFORE, in consideration of the premises, the respective agreements
hereinafter set forth and the mutual benefits to be derived herefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
TERMS
1. ENGAGEMENT.
The
Company hereby engages Greenwave to provide the Services to the Company and
its
subsidiaries during the Term (as defined in Section
4),
and
Greenwave hereby agrees to provide the Services to the Company during the Term,
all on the terms and subject to the conditions set forth below (the
“Engagement”).
2. SERVICES
OF GREENWAVE.
(a) Greenwave
hereby agrees to provide the Services to the Company during the Term in
accordance with applicable law and best practices in the industry. The Services
include, without limitation, consultation with the Company’s board of directors
(the “Board”)
and
management in such manner and on such business and financial matters as may
be
reasonably requested from time to time by the Board, including, but not limited
to: (i) corporate, acquisition and divestiture strategies; (ii) budgeting of
future corporate investments; (iii) public offerings; (iv) debt and equity
financings; (v) sourcing and identifying potential acquisition candidates;
(vi)
establishing initial contact and negotiating letters of intent with targets;
(vii) formulating and negotiating acquisition structures (e.g., stock/cash
mix,
earnouts, compensation); (viii) financial modeling of target acquisitions;
(ix)
oversight of lender approval process; (x) oversight of due diligence process
(including specialists e.g., environmental, ERISA, insurance, tax); (xi)
negotiating definitive acquisition and/or financing agreements and ancillary
documents; (xii) coordination and oversight of closing process; (xiii) assisting
management in implementation of integration strategy and post-closing matters
(e.g., identifying potential cost savings, plant closings, employee matters,
lease negotiations, supply agreements and other consolidation opportunities);
(xiv) assisting management in presentations to the investment community and
analysts of acquired companies and results of acquisition strategy, (xv) and
other related services requested by the Company and reasonably acceptable to
Greenwave.
(b) Greenwave
will devote such time and attention to the performance of the Services as are
reasonably necessary. Any reference herein to an approval or other action of
the
Board will mean a determination based on a finding by a majority vote of the
members of the Board (excluding the votes of those directors who are also
principals of Greenwave) that the approval or other action is in the best
interest of the Company.
3. COMPENSATION.
(a) The
Company hereby agrees to pay to Greenwave, as compensation for Services to
be
rendered by Greenwave hereunder, a monthly fee equal to $10,000 for each month
in which Services are rendered during the Term, and appropriately prorated
for
partial months (the “Fee”);
provided,
that
(i) the Fee shall not begin to accrue until the Commencement Date (as defined
in
Section
4),
if
any, and (ii) the Fee shall be payable no later than the tenth day of the
calendar month following the Commencement Date (the “First
Payment Date”).
On
the First Payment Date, the Company shall pay to Greenwave all amounts that
have
accrued pursuant to Section
3(a)(i),
appropriately prorated for the partial month, and thereafter, the monthly Fee
shall be payable no later than ten (10) days after the calendar month in which
the Services were provided.
(b) In
addition to the Fee, the Company hereby agrees that, promptly after request
from
Greenwave from time to time, the Company shall reimburse Greenwave for its
out-of-pocket expenses reasonably incurred by Greenwave during the Term in
furtherance of the performance of the Services; provided,
that
the Company’s prior written consent shall be required before Greenwave incurs
any individual expense in excess of $500. In order to obtain reimbursement
of
any expense, Greenwave shall submit to the Company written documentation (e.g.,
receipts) of such expense, along with any other supporting documentation
reasonable requested by the Company. All such documented expenses shall be
reimbursed on at least a monthly basis.
4. TERM.
The
Engagement shall not commence unless and until both (i) the Merger closes,
and
(ii) the Company receives equity financing from unaffiliated third parties
of at
least $2.0 million (a “Minimum
Financing”)
after
the date hereof and prior to the 6th
month
anniversary of the date hereof (the later of the date the Merger closes and
the
date the Company receives the Minimum Financing being the “Commencement
Date”).
If
the Merger closes and the Company receives such Minimum Financing within such
6th
month
period, the Engagement will be in effect for an initial term of one (1) year
(the “Initial
Term”),
commencing on the Commencement Date and expiring on the one (1) year anniversary
thereof. If the Merger does not close or the Company does not receive the
Minimum Financing within such 6th
month
period, the Agreement shall terminate and no longer have any force or effect.
The Engagement will be renewed automatically thereafter on a year-to-year basis
unless one party gives the other thirty (30) days’ prior written notice of its
desire not to renew this Agreement. The Initial Term, as renewed in accordance
with the terms of this Agreement, is referred to herein from time to time as
the
“Term.”
5. TERMINATION;
SURVIVAL.
(a) The
Engagement may be terminated prior to the expiration of the Term (i) by the
mutual written consent of the parties, (ii) by either party, if the other party
materially breaches the terms of this Agreement and does not cure such breach
within thirty (30) days of receipt of written notice of such breach from the
non-breaching party, or (iii) by either party, if the other party becomes
insolvent or seeks protection pursuant to any bankruptcy, receivership, trust
deed, creditors arrangement, composition, or comparable proceeding, or if any
such proceeding is instituted against the other party and not dismissed within
sixty (60) days, or if the other party dissolves, liquidates, or ceases to
conduct business.
(b) In
the
event the Engagement terminates pursuant to (A) Section
5(a)(i)
or
Section
5(a)(iii)
above,
Greenwave shall only be entitled to the unpaid portion of the Fee that accrued
and became payable pursuant to Section
3
prior to
the effective date of such termination, (B) Section
5(a)(ii)
above
and Greenwave is the breaching party, Greenwave shall only be entitled to the
unpaid portion of the Fee that accrued and became payable prior to the material
breach that gave rise to such termination, and (C) Section
5(a)(ii)
above
and the Company is the breaching party, Greenwave shall be entitled to the
unpaid portion of the Fee as of the effective date of termination, plus the
monthly Fee for three (3) additional months or for the remainder of the then
current Term, whichever is shorter.
(c) In
the
event the Engagement expires by its terms or is terminated pursuant to this
Section 5,
all of
the provisions of this Agreement shall terminate, except that the following
provisions hereof shall survive: Sections
5 through
19.
The
termination or expiration of the Engagement shall not effect either party’s
rights that accrued prior thereto.
6. INDEMNIFICATION.
Each
party (an “Indemnifying
Party”)
shall
indemnify the other party and its affiliates and their respective successors
and
assigns, and each of their respective officers, directors, employees,
stockholders, consultants and agents (collectively, the “Indemnified
Parties”),
in
respect of, and hold them harmless against, any and all claims, demands, causes
of action, actions, proceedings, judgments, debts, obligations, liabilities,
damages, fines, fees, penalties, interest obligations, taxes, deficiencies,
losses, costs and expenses (including amounts paid to enforce the provisions
of
this Section
6
and
amounts paid in settlement, interest, court costs, costs of investigators,
fees
and expenses of attorneys, accountants, financial advisors and other experts,
and other expenses) (collectively, “Damages”)
incurred or suffered by any of the Indemnified Parties arising out of, resulting
from, relating to, or constituting (i) any fraud, misrepresentation or breach
of
this Agreement by the Indemnifying Party, or (ii) any gross negligence or
willful misconduct by the Indemnifying Party.
7. GREENWAVE
AN INDEPENDENT CONTRACTOR.
Each
of
Greenwave and the Company hereby agree that Greenwave will perform the Services
as an independent contractor, retaining control over and responsibility for
its
own operations and personnel. Without limiting the foregoing, Greenwave
acknowledges and agrees that neither it nor its employees or agents shall have
any right to any compensation or benefits that the Company grants its employees,
including any salary, pension, stock, bonus, profit sharing, health or other
benefits that are available to employees of the Company, and Greenwave will
be
solely responsible for all insurance, employment taxes, FICA taxes and all
obligations to governments or other organizations arising out of this Agreement,
and acknowledges that no income, social security or other taxes will be withheld
or accrued by the Company on Greenwave’s behalf. In addition, Greenwave shall
not use any sub-contractors to perform the Services hereunder. Greenwave shall
be solely responsible for any and all injuries and liabilities that may result
from performance of the Services under this Agreement, and shall be solely
responsible for the purchase and maintenance of employment and/or workers
compensation insurance coverage related to its employees, contractors, agents
and consultants, and the Company shall have no responsibility or liability
for
any such coverage. Neither Greenwave nor its principals, officers or employees
will be considered employees or agents of the Company as a result of this
Agreement, nor will any of them have authority to contract in the name of or
bind the Company based on the consulting relationship established
hereunder.
8. CONFIDENTIAL
INFORMATION.
Greenwave
acknowledges that the information, observations and data obtained by it and
its
principals, agents and employees during the course of Greenwave’s performance
under this Agreement, including, but not limited to, trade secrets, know how,
technical and business information, models, techniques, formula, processes,
samples, inventions and ideas business plans, financial data and business
relations (“Company
Confidential Data”),
whether or not marked as proprietary or confidential, are the Company’s
valuable, special and unique assets. Greenwave therefore agrees that it will
not, nor will it permit any of its principals, agents or employees to, disclose
to any person or entity any of the Company Confidential Data, without the
Company’s prior written consent, unless and to the extent that (i) the Company
Confidential Data becomes generally known to and available for use by the public
otherwise than as a result of Greenwave’s acts or omissions to act, or (ii) such
disclosure is required be produced pursuant to an order of a court of competent
jurisdiction or a valid subpoena, provided that Greenwave promptly notifies
the
Company of such required disclosure and reasonably cooperates with the Company’s
efforts to contest or limit the scope of such disclosure. The Company
acknowledges that the information, observations and data pertaining to Greenwave
obtained by Company and its principals, agents and employees during the course
of Greenwave’s performance under this Agreement, including, without limitation,
any advice rendered by Greenwave, whether formal or informal, may not be
disclosed, in whole or in part, to any third party (other than the Company’s
agents or representatives) or summarized, excerpted from or otherwise referred
to without Greenwave’s prior written consent (the “Greenwave
Confidential Information”).
To
the extent consistent with legal requirements, all information given to one
party of this Agreement (the “Recipient
Party”)
by the
other party (the “Providing
Party”),
including, without limitation, this Agreement, except for disclosures pursuant
to (i)
through
(ii)
of this
Section
8,
will be
held by the Recipient Party in confidence and will not, without the Providing
Party’s prior written approval, be disclosed to anyone other than the
Recipient’s agents and advisors who require such information to perform services
for the Providing Party as contemplated by this Agreement (and who agree to
use
such information only in connection with such services) or used by such person
or entity for any purpose other than those contemplated by this Agreement.
9. NOTICES.
Any
notice or report required or permitted to be given or made under this Agreement
by one party to another will be deemed to have been duly given or made if
personally delivered, delivered by reputable overnight courier, sent by
telecopy, or, if mailed, when mailed by registered or certified mail, postage
prepaid, to the other party at the following addresses (or at such other address
as will be given in writing by one party to the other):
If
to
Greenwave:
Greenwave
Partners LLC
x/x
Xxxxxxxxxx Xxxxxx Xxxxxxxx
0000
Avenue of the Stars
Xxxxx
0000
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxx Xxxxxxxxxx, Manager, and Xxxxx Xxxxxx, Manager
If
to the
Company:
G8Wave,
Inc.
000
Xxxxxxxxx Xxx. Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxx
10. ENTIRE
AGREEMENT; MODIFICATION.
This
Agreement and (i) contains the complete and entire understanding and agreement
of Greenwave and the Company with respect to the subject matter hereof, (ii)
supersedes all prior and contemporaneous understandings, conditions and
agreements, oral or written, express or implied, respecting the engagement
of
Greenwave in connection with the subject matter hereof, including, but not
limited to, the Original Agreement, and (iii) may not be modified except by
an
instrument in writing executed by a duly authorized representative of each
of
Greenwave and the Company.
11. WAIVER
OF BREACH.
No
waiver
of any provision of this Agreement shall be effective unless in a writing signed
by the party entitled to enforce such provision. The waiver by any party of
a
breach of any provision of this Agreement by any other party will not operate
or
be construed as a waiver of any subsequent breach of that provision or any
other
provision thereby.
12. ASSIGNMENT.
Neither
Greenwave nor the Company may assign their respective rights or obligations
under this Agreement without the express written consent of the other party
hereto; provided,
that
the Company may assign this Agreement without such consent to any person or
entity that acquires its business or assets, including, but not limited to,
Pubco as part of the Merger.
13. GOVERNING
LAW; VENUE.
This
Agreement will be deemed to be a contract made under, and is to be governed
and
construed in the accordance with, the internal laws of the State of Delaware,
without regard to conflict of law principles.
14. SEVERABILITY.
If
any
provision of this Agreement is declared by any court of competent jurisdiction
to be invalid for any reason, such invalidity shall not affect the remaining
provisions of this Agreement, which shall be fully severable, and given full
force and effect.
15. ATTORNEYS’
FEES.
In
the
event that there has been a breach of any provisions of this Agreement by any
party hereto, the other party will be entitled to recover its reasonable costs
and attorneys’ fees in any legal proceeding to enforce the terms of this
Agreement.
16. COUNTERPARTS.
This
Agreement may be executed in counterparts and by facsimile signature, each
of
which shall be deemed an original, but all of which, together, shall constitute
one and the same instrument.
17. HEADINGS.
The
headings used in this Agreement are used for convenience only and are not to
be
considered in construing or interpreting this Agreement.
18. FURTHER
ASSUARANCES.
Each
party shall take all actions and execute all documents reasonably necessary
to
effectuate the purposes and intents of this Agreement.
19. BENEFICIARIES.
The
benefits of this Agreement shall inure to the parties hereto, their respective
successors and permitted assigns, and the obligations and liabilities assumed
in
this Agreement by the parties hereto shall be binding upon their respective
successors and permitted assigns.
[REMAINDER
LEFT BLANK - SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date above written.
|
GREENWAVE
PARTNERS LLC,
|
G8Wave,
Inc.,
|
|
a
Colorado limited liability company
|
a
Delaware corporation
|
|
By:
/s/ Xxxx
Xxxxxxxxxx
|
By:
/s/ Xxxxx
Xxxxxx
|
|
Name:
Xxxx Xxxxxxxxxx
|
Name:
Xxxxx
Xxxxxx
|
|
Title:
Manager, Greenwave Partners LLC
|
Title:
President
|
By:
/s/ Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Manager, Greenwave Partners LLC
