EXHIBIT A
ADVISORY AGREEMENT
(ISIS LOGO) XXXXXX (JR) XXXXXXXXX
Managing Member
ISIS CAPITAL MANAGEMENT, LLC
0000 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000
December 1, 2003
Xx. Xxxxxxx X. Xxxxx and Xx. Xxxx X. Xxxxxxxx
Ramius Capital Group, LLC
Chrysler Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Advisory Agreement (Venus)
Dear Xx. Xxxxx and Xx. Xxxxxxxx:
The purpose of this letter (this "Agreement") is to set forth the terms of the
advisory agreement between Ramius Capital Group, LLC and Ramius Securities, LLC
(together, "Ramius"), RCG Xxxxxxx Master Fund, Ltd., RCG Carpathia Master Fund,
Ltd. and Ramius Master Fund, Ltd. (together, the "Funds" and each a "Fund"), and
ISIS Capital Management, LLC ("ISIS") regarding investments in Via Xxx.Xxxxx,
Inc ("Venus").
1. Engagement. The parties have discussed the investment of Ramius and the
Funds in Venus. Ramius hereby engages ISIS to advise Ramius and the Funds
on their current and future investment(s), if applicable, in Venus and
proposed transactions involving Venus and to provide such other services
in connection therewith as the parties may agree.
2. Fee.
(a) Ramius and each of the Funds, as applicable, shall pay ISIS a
fee (the "Fee") consisting of the following amounts, which shall be
calculated and paid within 15 days after the Termination Date (as defined
below) with respect to Ramius or such Fund, as applicable: (i) in the case
of each Fund, 6% of such Fund's Profits (as defined below), and (ii) in
the case of Ramius, 20% of Ramius' Profits.
(b) "Profits" means, as calculated separately with respect to each
of the Funds and Ramius, the excess, if any, of (x) the gross proceeds
from sales or exchanges of shares of Venus by such Fund or Ramius (as
applicable), less commissions and other direct expenses of the investment,
over (y) the cost basis of such shares.
3. Position. Ramius and ISIS shall provide each other with timely written
notice of all shares of Venus held, purchased, and sold, as the case may
be, by the Funds, Ramius, ISIS or one or more accounts managed by ISIS, as
the case may be, said notice to note whether such shares are those of the
Funds, Ramius, ISIS or one or more accounts managed by ISIS, as the case
may be. Ramius and ISIS shall also cooperate with each other in the
preparation of any regulatory filing, report, proxy vote or other document
or any other matter relating to Venus; provided, however, that
each of the parties hereto retains sole discretion over acquisitions and
dispositions of, and voting authority over, the shares of Concerto that it
holds. Each of Ramius and ISIS recognizes that time is of the essence in
preparing such documents, and each shall use its best efforts to cooperate
with the other in the furnishing of information to such party in order to
facilitate timely completion of such documents. All shares of Venus held
by Ramius or a Fund, whether acquired before, on or after the date hereof,
will be held pursuant to the terms hereof.
4. Information.
(a) Ramius and the Funds will coordinate purchases and sales of
Venus shares with ISIS, and will abide by the obligations imposed on ISIS
concerning confidential information, as well as all applicable laws and
regulations.
(b) Ramius and the Funds agree to treat as confidential information
for the term of this Agreement any confidential and proprietary
information provided by ISIS concerning business and activities of Venus.
5. Expenses. In addition to the Fee, Ramius agrees to reimburse ISIS (or,
in its discretion, to cause the Funds to reimburse ISIS) for costs and
expenses reasonably incurred in performing services hereunder; provided,
however, that ISIS must obtain advance approval from Ramius for such costs
and expenses before Ramius or any Fund has any obligation to pay any such
costs or expenses.
6. Group Expenses. To the extent that expenses are incurred by a group
participating with ISIS in connection with investments in Venus including
Ramius and the Funds, Ramius and the Funds will each pay a portion of the
expenses incurred by such group, pro rata based on their respective
holdings; provided, however, that ISIS must obtain advance approval from
Ramius for such costs and expenses before Ramius or any Fund has any
obligation to pay any such costs or expenses.
7. Term. This Agreement shall terminate (a) with respect to Ramius or
either Fund, on the date that is 30 days after the date that Ramius or
such Fund, as the case may be, no longer owns any shares of Venus (such
date, as occurring with respect to such Fund or Ramius, the "Termination
Date"), and (b) with respect to ISIS, on the date that is 30 days after
the date that none of Ramius and the Funds owns any shares of Venus. The
representations, warranties and obligations under Sections 2, 3, 4(a), 5,
6, 7, 8, 9 and 10 shall survive the termination hereof.
8. Limited Liability. Each of Ramius, the Funds and ISIS agree that none
of Ramius, the Funds or ISIS, nor the respective members, officers,
employees or affiliates of any of them, shall be liable for any loss
arising out of any act or omission hereunder unless arising out of their
gross negligence, willful misconduct, malfeasance or bad faith.
Notwithstanding any of the foregoing to the contrary, the federal
securities laws of the United States impose liability under certain
circumstances even on persons who act in good faith, and nothing in this
Section 8 constitutes a waiver or limitation of any rights that Ramius or
the Funds may have under such laws.
9. Representations, Warranties and Covenants. Each of the parties hereto
hereby represents and warrants to, and covenants with, the other parties
that:
(a) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has full power
and authority to enter into and perform its obligations under this
Agreement, that it is qualified to conduct its business and is in good
standing in every jurisdiction in which the nature or conduct of its
business requires such qualification and failure to so qualify would have
a material adverse effect on its ability to comply with or perform its
obligations under this Agreement (it being understood that any decision as
to the jurisdiction or jurisdictions in which it shall conduct its
business is within its sole discretion), and that this Agreement has been
duly and validly authorized, executed and delivered by it and is its valid
and binding agreement enforceable in accordance with its terms;
(b) it shall obtain and maintain as current, during the term of this
Agreement, any necessary approvals, consents, licenses and registrations
from any governmental entity or any other person or entity necessary to
perform its obligations hereunder, and shall use its commercially
reasonable best efforts to prevent such approvals, consents and
registrations from lapsing or being revoked, suspended, terminated, or not
renewed, or being limited or qualified in any respect during the term of
this Agreement; and
(c) it shall have complied and will continue to comply with all laws
and regulations applicable to it or to its respective businesses,
properties or assets, the violation of which would materially adversely
affect its ability to comply with and perform its obligations under this
Agreement, and, to its knowledge, there are no actions, suits,
proceedings, or notices of investigations pending or threatened against it
by any governmental entity or before any court, arbitrator or regulatory
authority (at law or in equity) regarding its non-compliance with any law
or regulation that is reasonably likely to materially and adversely affect
its ability to comply with and to perform its obligations under this
Agreement, and it shall promptly notify the other parties hereto of the
commencement of any such suit, action or proceeding or its receipt of
notice of commencement thereof.
10. Miscellaneous.
(a) No party hereto shall by any act (except as provided herein),
delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder. No failure to exercise, nor any delay in
exercising, on the part of any party hereto, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any party hereto of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right or remedy
which any party hereto would otherwise have on any future occasion.
(b) Except as otherwise set forth in this Agreement, this Agreement
shall be binding upon and inure solely to the benefit of the parties
hereto and their permitted successors and assigns, and nothing herein,
express or implied, is intended to or shall confer upon any other person
or entity, any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. No party hereto may
assign any of its rights or obligations under this Agreement to any person
without the prior written consent of the other parties hereto.
(c) This Agreement shall be interpreted in accordance with and
governed by the laws of the State of New York. If any provision hereof
would be invalid under applicable law, then such provision shall be deemed
modified to the extent necessary to render it valid while most nearly
preserving its original intent. No provision hereof shall be affected as a
result of another provision being held invalid.
(d) Any action or proceeding against the parties hereto relating in
any way to this Agreement or the transactions contemplated hereby shall be
brought and enforced exclusively in the courts of the State of New York or
(to the extent subject matter jurisdiction exists therefor) of the United
States in the Southern District of New York, and any courts appealable
therefrom, and the parties irrevocably submit to the jurisdiction of all
such courts in respect of any such action or
proceeding. Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent permitted by law, any
objection that they may now or hereafter have to the laying of venue of
any such action or proceeding in the courts of the State of New York or
the United States District Court for the Southern District of New York,
and any courts appealable therefrom, and any claim that any such action or
proceeding brought in any such court has been brought in any inconvenient
forum.
(e) This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes any and
all prior agreements and undertakings, both written and oral, between the
parties hereto with respect to the subject matter hereof.
(f) This Agreement may be executed by the parties hereto by manual
or facsimile signature, and in any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
Please indicate your agreement by signing below and returning a signed copy to
my attention.
Very truly yours,
ISIS Capital Management, LLC
By: ________________________
Name: Xxxxxx (JR) Xxxxxxxxx
Title: Managing Member
Accepted and Agreed:
Ramius Capital Group, LLC
By: ________________________
Name:
Title:
Ramius Securities, LLC
By: ________________________
Name:
Title:
RCG Xxxxxxx Master Fund, Ltd.
By: ________________________
Name:
Title: Authorized Person
RCG Carpathia Master Fund, Ltd.
By: ________________________
Name:
Title: Authorized Person
Ramius Master Fund, Ltd.
By: ________________________
Name:
Title: Authorized Person
