EXHIBIT 10.1
XXXXXXX SECURITIES, LLC
0000 XXX XXXXXXX, XXXXX 0000
XXXXXXXXX XXXXXXX, XXXXXXXX 00000-0000
(000) 000-0000
(000) 000-0000 FAX
April 29, 2005
Mr. Xxxxx Xxxxxxx, President
Marine Jet Technology Corp.
000X Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxx Xxxxx, Xxxxxxx, 00000
Re: Financial Advisory Agreement
Dear Xx. Xxxxxxx:
This letter will confirm our agreement ("Agreement") that Xxxxxxx Securities,
LLC ("Xxxxxxx") is authorized to represent Marine Jet Technology Corp. and its
affiliates, subsidiaries and related entities (collectively, the "Company") and
to assist the Company as its financial advisor on the terms and conditions set
forth herein. This Agreement shall become effective upon the execution hereof by
both Xxxxxxx and the Company.
1. PERFORMANCE OF SERVICES. In its capacity as financial advisor, Xxxxxxx will
assist the Company by undertaking the following activities, to the extent
that such activities are required or requested by the Company. The services
being provided by Xxxxxxx hereunder are being rendered solely to the Board
of Directors of the Company (the "Board"). These services are not being
rendered by Xxxxxxx as an agent or as a fiduciary of the shareholders of
the Company, and Xxxxxxx shall not have any obligation or liability with
respect to its services hereunder to such shareholders or any other person,
firm or corporation absent fraud or willful misconduct by Xxxxxxx.
Xxxxxxx shall act as the Company's exclusive advisor concerning matters
pertaining to the Company's efforts to acquire Antik Denim, LLC ("Antik")
in a reverse merger or similar transaction ("Reverse Merger"). Xxxxxxx will
assist the Company in: (i) the corporate, business and financial due
diligence evaluation of Antik; (ii) the capital and transaction
structuring; (iii) development of capital markets strategy; (iv) valuation
analysis; (v) company, market and industry research; (vi) analysis of
various exchange listing requirements; and (vii) transaction negotiation
and execution. The services set forth in this paragraph shall be referred
to herein in as "Reverse Merger Services".
The parties hereto acknowledge and agree that Xxxxxxx is not rendering
legal advice or performing accounting or auditing services as part of the
services provided under this Agreement. Xxxxxxx shall be free to provide
services for other persons, which services shall not be deemed to be in
conflict with the services to be performed by Xxxxxxx under this Agreement.
2. TERM. The term of this Agreement shall commence on the date of this
Agreement and continue until the earlier of the closing or the abandonment
of the Reverse Merger (the "Term"). The Term hereof may be extended by the
mutual written agreement of the parties hereto. Notwithstanding anything
contained herein to the contrary, the provisions of Section 2 (Term),
Section 3 (Compensation), Section 9 (Indemnification), Section 10
(Disclosure) and Section 11 (Miscellaneous) shall survive the termination
and expiration of this Agreement.
3. COMPENSATION. As compensation for the Reverse Merger Services rendered by
Xxxxxxx under this Agreement, upon closing of the Reverse Merger between
the Company and Antik, the Company shall pay Xxxxxxx a fee of $350,000 at
the closing of the Reverse Merger.
4. AFFILIATED COMPANIES. The Company acknowledges and agrees, and enters into
this Agreement with the full knowledge that, Xxxxxxx and its officers,
directors and affiliates: (i) own, directly or indirectly, a majority
interest in the Company as of the date of this Agreement; (ii) own,
directly or indirectly, an interest in certain investment funds that have
provided or may provide equity or debt financing to the Company for which
Xxxxxxx or one of its affiliates would be entitled to compensation
hereunder with respect to financing raised from such funds during the Term
hereof; and (iii) manage certain investment funds that have provided or may
provide equity or debt financing to the Company for which Xxxxxxx or one of
its affiliates would be entitled to compensation hereunder with respect to
financing raised from such funds during the Term hereof.
5. AVAILABILITY AND ACCURACY OF INFORMATION. The Company shall furnish Xxxxxxx
with all reasonable information and material requested or required by
Xxxxxxx involving the Company and Antik including, without limitation,
information concerning historical and projected financial results, public
and regulatory filings, material contracts and commitments, proposed
financings, acquisitions or other transactions, and possible and known
litigation, environmental and other contingent liabilities of the Company
and Antik ("Information"). The Company also agrees to make available to
Xxxxxxx such representatives of the Company and Antik, including, among
others, directors, officers, employees, outside counsel and independent
certified public accountants, as Xxxxxxx may reasonably request. The
Company will promptly advise Xxxxxxx of any material changes in the
Company's or Antik's business or finances. The Company represents and
warrants that the Information provided or made available to Xxxxxxx by the
Company and Antik, at all times during the Term hereof, is and shall be
complete and true in all material respects and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements thereof not misleading in light of the
circumstances under which such statements are made. The Company further
represents and warrants that any projections provided to Xxxxxxx will have
been prepared in good faith and will be based upon assumptions that, in
light of the circumstances under which they are made, are reasonable. The
Company acknowledges and agrees that in rendering its services hereunder
Xxxxxxx will be using and relying on the Information, without independent
investigation, appraisal or verification, and Xxxxxxx assumes no
responsibility for the accuracy or completeness of the Information.
6. INDEMNIFICATION. The Company agrees to indemnify and hold harmless Xxxxxxx,
its affiliates and their respective officers, directors, members, partners,
employees, agents and affiliates and
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control persons of any of the above (each an "Indemnified Person") from and
against all claims, liabilities, losses or damages (or actions in respect
thereof) or other expenses that are related to or arise out of (i) actions
taken or omitted to be taken (including any untrue statements made or any
statements omitted to be made) by the Company, (ii) any breach of any
warranty, representation or agreement of Company contained in this
Agreement, or (iii) actions taken or omitted to be taken by an Indemnified
Person with the consent of or in conformity with the actions or omissions
of the Company. The Company shall not be responsible, however, for any
losses, claims, damages, liabilities or expenses pursuant to the preceding
sentence that are finally judicially determined to have resulted from
Xxxxxxx'x or such other Indemnified Person's grossly negligent, reckless or
wrongful conduct, and Xxxxxxx agrees to indemnify and hold Company harmless
from any claims, losses, liabilities or damages incurred by the Company
arising out of Xxxxxxx'x grossly negligent, reckless or wrongful conduct as
determined in a final judicial determination. The Company agrees to
reimburse each Indemnified Person for all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel for such Indemnified
Person) of such Indemnified Person in connection with investigating,
preparing, conducting or defending any such action or claim, whether or not
in connection with litigation in which any Indemnified Person is a named
party, or in connection with enforcing the rights of an Indemnified Person
under this Agreement. The indemnity agreements under this Section shall
survive the completion of services rendered for Company by Xxxxxxx and the
termination or expiration of this Agreement.
7. DISCLOSURE AND CONFIDENTIALITY. Any financial or other advice, descriptive
memoranda or other documentation rendered by Xxxxxxx pursuant to this
Agreement may not be disclosed publicly or to any third party without the
prior written approval of Xxxxxxx. All non-public information provided by
the Company to Xxxxxxx will be considered confidential information and
shall be maintained as such by Xxxxxxx, except as required by law or as
required to enable Xxxxxxx to perform its services pursuant to this
Agreement, until the same becomes known to third parties or the public
without release thereof by Xxxxxxx. This provision is intended to insure,
among other things, that the parties at all times comply with the
provisions of SEC Regulation FD.
8. MISCELLANEOUS.
A. Before the Company releases any information referring to Xxxxxxx'x
role as the Company's financial advisor under this Agreement or uses
Xxxxxxx'x name in a manner which may result in public dissemination
thereof, the Company shall furnish drafts of all documents or prepared
oral statements to Xxxxxxx for comments, and shall not release any
information relating thereto without the prior written consent of
Xxxxxxx. Nothing herein shall prevent the Company from releasing any
information to the extent that such release is required by law.
B. The Company agrees that, following the consummation of any transaction
covered by this Agreement, Xxxxxxx shall have the right to place
advertisements in financial and other newspapers and journals at
Xxxxxxx'x expense, describing its services to the Company hereunder,
provided that Xxxxxxx will submit a copy of any such advertisements to
the Company for its prior approval, which approval shall not be
unreasonably withheld.
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C. The Company represents and warrants that this Agreement has been duly
authorized and represents the legal, valid, binding and enforceable
obligation of the Company and that neither this Agreement nor the
consummation of any transactions contemplated hereby requires the
approval or consent of any governmental or regulatory agency or
violates or conflicts with any law, regulation, contract or order
binding the Company.
D. The terms, provision and conditions of this Agreement are solely for
the benefit of the Company and Xxxxxxx and the other Indemnified
Persons and their respective heirs, successors and permitted assigns
and no other person or entity shall acquire or have a right by virtue
of this Agreement. This Agreement may not be assigned by either party
without prior written consent of the other party.
E. This Agreement contains the entire understanding and agreement between
the parties hereto with respect to Xxxxxxx'x engagement hereunder, and
all prior writings and discussions are hereby merged into this
Agreement. No provision of this Agreement may be waived or amended
except in a writing signed by both parties. A waiver or amendment of
any term or provision of this Agreement shall not be construed as a
waiver or amendment of any other term or provision.
F. Each party represents and warrants that it will comply with all
applicable securities and other laws, rules and regulations relating
hereto and that it shall not circumvent or frustrate the intent of
this Agreement.
G. This Agreement may be executed by facsimile signatures and in multiple
counterparts, each of which shall be deemed an original. It shall not
be necessary that each party executes each counterpart, or that any
one counterpart be executed by more than one party so long as each
party executes at least one counterpart.
H. 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.
I. This Agreement shall be governed by and constructed under the laws of
the State of Colorado without regard to such state's conflicts of law
principles, and may be amended, modified or supplemented only by
written instrument executed by parties hereto.
J. All disputes, controversies or claims ("Disputes") arising out of or
relating to this Agreement shall in the first instance be the subject
of a meeting between a representative of each party who has
decision-making authority with respect to the matter in question.
Should the meeting either not take place or not result in a resolution
of the Dispute within twenty (20) business days following notice of
the Dispute to the other party, then the Dispute shall be resolved in
a binding arbitration proceeding to be held in Denver, Colorado in
accordance with the international rules of the American Arbitration
Association. The arbitrators may award attorneys' fees and other
related arbitration expenses, as well as pre- and post-judgment
interest on any award of damages, to the prevailing party, in their
sole discretion. The parties agree that a panel of three arbitrators
shall be required, all of whom shall be fluent in the English
language, and that the arbitration proceeding shall be conducted
entirely
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in the English language. Any award of the arbitrators shall be deemed
confidential information for a minimum period of five years, except to
the extent public disclosure of such information is required by
applicable securities laws or regulations.
K. All notices required by the terms of this Agreement shall be in
writing and delivered to the other party at the addresses set forth
below, either by personal delivery, by a recognized international
overnight courier service, or by facsimile or e-mail transmission.
Notices will be deemed given as of the date of receipt, which date
shall be evidenced by the signature of an authorized representative of
the receiving party or by written evidence of a successful
transmission of either a facsimile or e-mail message.
If to Xxxxxxx:
XXXXXXX SECURITIES, LLC
Attn: Xxxxxxx X. Xxxxxxx, President
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000 telephone
(000) 000-0000 fax
If to the Company:
MARINE JET TECHNOLOGY CORP.
Attn: Xxxxx Xxxxxxx, President
000X Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxx Xxxxx, Xxxxxxx, X.X.X 00000
(000) 000-0000
(000) 000-0000 fax
or such other address as indicated by the Company as its
primary business address in its SEC filings.
[Remainder of this page intentionally left blank.]
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If the forgoing correctly sets forth the entire understanding and
agreement between the Company and Xxxxxxx, please so indicate by executing this
Agreement as indicated below and returning an executed copy to Xxxxxxx together,
whereupon this Agreement shall constitute a binding agreement as of the date
first above written.
Very truly yours,
XXXXXXX SECURITIES, LLC
/s/ Xxxxxxx X. Xxxxxxx
By:________________________________
Xxxxxxx X. Xxxxxxx, President
ACCEPTED AND AGREED TO:
Marine Jet Technology Corp.
/s/ Xxxxx X. Xxxxxxx
By: ______________________________
Xxxxx X. Xxxxxxx, President
Date: April 29, 2005
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