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EXHIBIT 10.23
AMENDED AND RESTATED CONSULTING AND FINANCIAL
ADVISORY SERVICES AGREEMENT
This AMENDED AND RESTATED CONSULTING AND FINANCIAL ADVISORY SERVICES
AGREEMENT (the "Agreement") is made and entered into this 24th day of
September, 1997 (the "Execution Date"), by and between TransCoastal Marine
Services, Inc., a Delaware corporation (the "Company") and J&D Capital
Investments, L.C., a Nevada limited liability company (the "Consultant"), in
order to amend and restate that certain Consulting and Financial Advisory
Services Agreement entered into by and between Red Fox International, Inc., a
Louisiana company and predecessor to the Company, and J&D Capital Investments, a
general partnership and predecessor to Consultant.
RECITALS
The Company desires to acquire certain target companies engaged in
providing offshore and marine construction, fabricating and related services to
the oil and gas industry;
The Company desires to engage Consultant to advise the Company with
respect to identification of target companies, assistance in negotiating
agreements for the acquisition of certain target companies, advice and analysis
regarding the structure and financing of such acquisitions, and assistance in
arranging such financing.
AGREEMENT
In consideration of the promises and covenants herein contained, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties to this Agreement agree as follows:
1. Services to be Provided. Upon request by the Company, and in
consultation with its executive officers, Consultant agrees to provide the
following services:
(i) Assist the Company in identifying target companies engaged in
the business of pipeline construction, pipeline testing,
pipeline construction and burial services, and fabrication
and installation of offshore structures for the offshore oil
and gas industry, provide the Company with advice and analysis
regarding the structure of the acquisitions and provide advice
and assistance regarding the acquisition of such companies,
(ii) Provide financial advisory services to the Company with
respect to mergers and acquisitions of target companies,
including advice and analysis concerning the financial
structure of the Company and assistance in identifying
potential institutional financing sources, assistance in
connection with the presentation of the Company to
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such sources and assistance in negotiating terms and
conditions of such financing; and
(iii) Provide briefings, reports and presentations to the Company's
management concerning its recommendations and the results of
its assessments.
2. Performance of Services. The parties agree that Consultant is
acting only in the capacity of an advisor and consultant to the Company, and
nothing herein shall be construed or deemed to create an employer-employee,
joint venture, partnership or similar business relationship between the Company
and Consultant. In each instance, Consultant will perform the consultation and
advisory services described above at the specific request of the Company.
Except as expressly provided by terms of this Agreement, any decision to
proceed with any proposal or to act on any recommendation, any commitment to
enter into any contract or obligation, and any election to hire or otherwise
engage any person or firm in connection with this engagement, shall be at the
sole discretion of the Company.
3. Authorization of Consultant. Consultant covenants and agrees
that:
(a) it currently possesses and will maintain power and authority
as required to conduct its business and provide the services
contemplated herein, as well as all licenses, permits and
other authorizations required to provide the services
contemplated in this Agreement;
(b) its execution and delivery of this Agreement and the
performance of its obligations hereunder will not violate the
provisions of any law or regulation applicable to Consultant,
or the provisions of the order or decree of any court or other
governmental entity with jurisdiction over Consultant or the
subject activities;
(c) its performance of all terms of this Agreement does not and
will not breach any fiduciary duty or other obligation of
Consultant with respect to any client or other person, whether
arising under any law or regulation applicable to Consultant
or pursuant to any agreement to which Consultant or any of its
affiliates may be a party; and
(d) it will observe and comply with all applicable laws and
regulations in the performance of its services hereunder.
4. Confidentiality. During the term of this Agreement and for
five (5) years after its termination, all non-public information which the
Company provides to Consultant as confidential information regarding the
Company, its business operations, management, financial condition, business
development strategy or objectives, shall be maintained by Consultant in strict
confidence and shall be disclosed only as required by law.
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5. Compensation for Services. In consideration of the
consultation and advisory services to be provided hereunder:
(a) During the first year of this Agreement, the Company shall pay
to Consultant an aggregate amount equal to $23,500 per month
payable monthly (the "Consulting Fee"). In each subsequent
year of this Agreement, the Company shall pay to Consultant an
aggregate amount equal to the greater of (i) the Consulting
Fee for the immediately preceding year or (ii) a Consulting
Fee determined by the Board of Directors following an annual
performance review.
(b) Effective upon the successful completion of the initial public
offering (the "IPO") of the common stock of the Company, par
value $.001 ("Common Stock"), Consultant shall be granted an
option to purchase a number of shares of Common Stock equal to
$660,000 divided by the initial offering price per share of
Common Stock at the IPO. The grant of such option shall be
pursuant to the Non-Qualified Stock Option Agreement attached
as Exhibit A hereto.
(c) Consultant shall receive an annual cash performance bonus for
the calendar year during the term of this Agreement to be
determined according to the following procedure. The Board of
Directors of the Company, or the Compensation Committee of the
Board of Directors, if so authorized, shall establish specific
annual performance goals for the Company and for Consultant
with respect to each calendar year during the term of this
Agreement commencing on January 1, 1998. Such goals shall be
communicated to Consultant not later than the end of the first
quarter of the applicable calendar year. At the end of each
calendar year during the term of this Agreement, or within a
reasonable time thereafter, the Board of Directors of the
Company, or the Compensation Committee of the Board of
Directors, if so authorized, shall review the actual
performance of the Company and Consultant, giving due
consideration to market and other developments outside of the
control or influence of Consultant and the Company, and based
upon the extent to which the applicable annual performance
goals have been achieved, shall determine in its sole and
absolute discretion, the amount of performance bonus payable
to Consultant with respect to such year.
6. Expenses. During the term hereof, the Company shall reimburse
Consultant for all reasonable and necessary travel and other expenses incurred
by Consultant in rendering services required under the terms of this Agreement.
7. Term. This Agreement shall terminate on the date that is
three (3) years from the Execution Date.
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8. Termination.
(a) This Agreement may be terminated by the Company upon:
(i) the willful, continued and unreasonable breach of
this Agreement by Consultant after reasonable written
notice and opportunity to cure such breach;
(ii) the conviction of Consultant, or a member thereof, of
a crime involving moral turpitude by a court of
competent jurisdiction as to which no further appeal
can be taken;
(iii) the proven commission by Consultant of an act of
fraud upon the Company;
(iv) the willful and proven misappropriation of any funds
or property of the Company by Consultant; or
(v) the dissolution of Consultant.
Such termination shall be effective upon delivery of written notice to
Consultant of the Company's election to terminate this Agreement under this
Section 8.
(b) This Agreement may be terminated by Consultant upon thirty
(30) days written notice to the Company.
(c) Upon the termination of this agreement as provided in this
Section 8, the Company's obligation to pay the Consulting Fee
shall cease, provided, however, no such termination shall
relieve the Company of the obligation to pay Consultant all
amounts due for services rendered hereunder by Consultant
prior to such termination.
9. Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their representatives, officers,
successors-in-interest and assigns; provided, however, that the rights and
duties of Consultant under this Agreement shall not be assigned without the
prior approval of the Company.
10. Entire Agreement; Amendment. This Agreement constitutes the
full and complete agreement of the parties hereto with respect to the subject
matter hereof and may be changed, modified or amended only by an instrument in
writing executed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement effective as of the date first above written.
TRANSCOASTAL MARINE SERVICES, INC.,
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXXX
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Xxxx X. Xxxxxxxxxx, Chief Executive Officer
J&D CAPITAL INVESTMENTS, L.C.
a Nevada limited liability company
By: /s/ G. XXXXX XXXX
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G. Xxxxx Xxxx, President
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