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EXHIBIT 10.1
FINANCIAL ADVISORY AGREEMENT
AGREEMENT (the "Agreement"), dated as of February 2, 2000, by and
between Capitalink, L.C., a Florida corporation with its principal place of
business at 000 Xxxxxxx Xxxx, Xx Xxxxxx del Sol, #245, Xxxxx Xxxxxx, Xxxxxxx
00000 ("Capitalink", or the "Financial Advisor"); and America's Senior Financial
Services, Inc., a Florida corporation with its principal place of business at
00000 X.X. 00xx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000 ("AMSE"). Financial Advisor
and AMSE are hereinafter collectively referred to as the "Parties".
W I T N E S S E T H:
WHEREAS, the Parties hereto desire for the Financial Advisor to advise
AMSE with respect to its corporate development activities, capital formation
initiatives and the further development and implementation of AMSE's public
markets strategy under the terms and conditions of this Agreement;
WHEREAS, the Parties hereto desire to memorialize the services to be
provided to AMSE by Financial Advisor, the compensation to be received by
Financial Advisor from AMSE for providing such services, and the terms and
conditions that shall govern the relationship between the Parties.
NOW THEREFORE, the Parties, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the Parties, who by
executing this Agreement agree to be bound by its terms and conditions, hereby
agree as follows:
1. TERM. This Agreement shall be for a term of three (3) years,
commencing as of the date first written above, and terminating one day prior to
the third anniversary hereof. Notwithstanding the forgoing and except for
earlier termination as otherwise provided for hereinafter, either Party hereto
may terminate this Agreement after the initial eighteen (18) months of the term
hereof, upon ninety (90) days prior written notice.
2. SERVICES TO BE PROVIDED BY FINANCIAL ADVISOR. The Financial Advisor
will provide the following services to AMSE:
(a) Study and review the business operations and historical
financial performance of AMSE (based upon management's forecast of financial
performance) so as to enable the Financial Advisor to provide advice to AMSE.
(b) Assist AMSE in attempting to formulate the optimal
strategy to meet AMSE's working capital and capital resources needs during the
term of this Agreement.
(c) Assist in the formulation of the terms and structure of
any reasonably proposed business combination transaction ("Transaction"),
involving AMSE and presented to Financial Advisor by AMSE, or to AMSE by
Financial Advisor.
(d) Arrange for or assist AMSE in obtaining debt and/or equity
financing in such amounts that AMSE agrees are required for the purpose of
financing AMSE's operations ("Financing").
(e) Assist in any presentation to the Board of Directors of
AMSE, as requested, in connection with a proposed transaction or financing.
(f) Subject to the following, if requested, render an opinion
(a "Fairness Opinion"), to the Board of Directors of AMSE as to whether the
consideration to be paid in any proposed acquisition of any business by AMSE is
fair and appropriate from the financial point of view of its shareholders.
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Notwithstanding the foregoing the Parties hereto hereby agree that with respect
to the rendering of any Fairness Opinion, AMSE shall offer Financial Consultant
the right of first refusal during the term hereof to so render such Fairness
Opinion. Financial Advisor shall notify AMSE within twenty-four (24) hours after
AMSE so notifies Financial Advisor of the request for such Fairness Opinion as
to whether Financial Advisor is willing and able to render such Fairness Opinion
on terms so reasonably requested by AMSE. AMSE shall only be required to retain
Financial Advisor to render such Fairness Opinion hereunder in the event the
cost of rendering such Fairness Opinion by Financial Advisor is at least ten
percent (10%) less than the lowest bona fide bid for such opinion received by
AMSE. In addition, AMSE agrees to so notify Financial Advisor of such lowest
third party bid received by AMSE to render such opinion in order to enable
Financial Advisor to so satisfy the foregoing price qualification. The Parties
further agree and acknowledge that Financial Advisor shall have twenty-four (24)
hours to respond to AMSE in order to satisfy such pricing qualification. Any
non-responsiveness hereunder shall be deemed to mean that a Party cannot pr is
unwilling to satisfy any such requests or price qualifications. For purposes of
this SubSection all notices may be given telephonically, or by person or by fax
and shall be deemed given when the call is made, or the notice delivered or
transmitted.
(g) Advise AMSE as to the expected reaction of the financial
community to any transaction and assist in determining the optimum means of
communicating the pertinent aspects of such transaction, such as strategic
considerations, benefits to AMSE and financial impact to the financial
community.
3. STATUS OF FINANCIAL ADVISOR. The Financial Advisor hereby represents
and acknowledges that the Financial Advisor is a broker-dealer registered with
the National Association of Securities Dealers, Inc. and with New York, New
Jersey, Florida, Connecticut and California. Financial Advisor does not
represent that it is acting as an attorney or certified public accountant, and
advises AMSE to seek professional advice necessary in all legal and accounting
matters. Financial Advisor's role is to use its best efforts to assist AMSE in
its efforts to obtain financing and to perform the advisory services detailed
herein. Accordingly, Financial Advisor will identify potential investors, help
negotiate one or more mutually agreeable transaction(s) and coordinate the
needed professionals to prepare the documentation, review same to confirm that
it meets the needs of AMSE and assure the timely closing of the contemplated
transaction(s).
4. FEES. For providing the financial advisory and investment banking
services contemplated herein, AMSE agrees to compensate the Financial Advisor as
follows:
(a) TRANSACTION FEES - ACQUISITIONS. It is understood by the
Parties that Financial Advisor is relying upon AMSE to provide compensation to
it based on the successful completion of each merger or acquisition
transaction(s) as provided for in this Section 4(a).
(i) In the event a Transaction is initiated by AMSE
during the term of this Agreement, and such Transaction results in a
Letter of Intent during the term of this Agreement and is subsequently
closed with such third party and AMSE during the term of this Agreement
or within twelve (12) months subsequent to the termination of this
Agreement (subject to the termination provisions described herein), a
transaction fee ("Transaction Fee"), computed as follows based upon the
consideration for such Transaction and payable upon the closing of such
Transaction shall be due and owing by AMSE to Financial Advisor:
Five percent (5%) of the first two million dollars;
four percent (4%) of the next two million dollars;
three percent (3%) of the next two million dollars
and one percent (1%) of the balance of the
consideration of the Transaction, but in no event
less than $25,000 for any Transaction consummated by
AMSE, PROVIDED HOWEVER, that Financial Advisor and
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AMSE agree that Transactions calling for a
consideration of less than $500,000 to be paid by
AMSE are to be expressly exempted from a Transaction
Fee in consideration of AMSE agreeing to pay
Financial Advisor the monthly consulting fees, as
more fully detailed herein.
(ii) For Transactions involving acquisition
candidates identified by AMSE or its directors or its management who
are acquired by or merged with AMSE, Financial Advisor shall be paid
compensation for the consummation of the Transaction, as follows: A
success fee based on seventy-five percent (75%) of the Modified Xxxxxx
Formula defined in the preceding Paragraph, PROVIDED HOWEVER, that
Financial Advisor and AMSE agree that Transactions calling for a
consideration of less than $500,000 to be paid by AMSE are to be
expressly exempted from a Transaction Fee in consideration of Financial
Advisor receiving the monthly consulting fees from AMSE, as more fully
detailed herein.
For purposes herein, "consideration" shall mean everything paid or
payable by one Party to the other in a transaction, including but not limited
to, cash, securities, promissory notes, loans or any other purchase related
consideration excluding payments contingent upon future events or conditions.
With respect to any such payments contingent upon future events or conditions,
the parties hereto hereby agree that the parties will use their best efforts to
then agree as to any fair and reasonable consideration to be paid to Financial
Advisor hereunder with respect to any such aspect of such consideration, after
taking into account various factors, including without limitation the present
value of any such future payments.
Any such Transaction Fee due to the Financial Advisor will be an
obligation of AMSE to be paid in cash or other consideration that is acceptable
to the Financial Advisor, PROVIDED HOWEVER, that the Parties agree that AMSE
shall pay such fees in a manner reasonably determined upon the then mutual
agreement of AMSE and Financial Advisor to allow for sufficient working capital
for the operation of AMSE; it being the intent of both AMSE and Financial
Advisor to use their respective best efforts to ensure that any payments of any
cash fees hereunder do not jeopardize the working capital need of AMSE. In the
event that any such fees are not paid at closing of any Transaction as provided
for herein; then the Parties agree to establish a fee payment schedule for each
such Transaction (in form and substance similar to the fee schedule previously
utilized by AMSE. in connection with its acquisition by AMSE of Dow Guarantee
Corp., which schedule has previously been disclosed to Financial Advisor), and
which will provide for at a minimum that the entire fee will be paid within six
(6) months of the closing of such Transaction, and for a minimum twenty-five
percent (25%) of the total fee to be paid in cash at the closing of such
Transaction. Notwithstanding anything contained herein to the contrary, in
AMSE's sole and complete discretion, the Parties hereto hereby agree that any
fee due hereunder in connection with any non-cash consideration paid or payable,
may be paid in kind by AMSE hereunder to Financial Advisor, provided that
Financial Advisor is afforded piggyback registration rights with respect to the
same.
(b) TRANSACTION FEES. PRIVATE PLACEMENT OR SECOND PUBLIC
OFFERING: It is understood by the Parties that Financial Advisor is relying upon
AMSE to provide compensation to it in the event of the successful completion of
one or more financing transactions as herein defined. As part of this Agreement,
AMSE agrees to retain Financial Advisor to advise AMSE with respect to AMSE's
ongoing capital formation initiatives and generally, to consult to and with
AMSE. Financial Advisor will receive compensation for such consulting services
and a "success fee" under the different circumstances outlined herein, as
follows, PROVIDED HOWEVER, that Financial Advisor and AMSE agree that in the
event AMSE procures gross proceeds of not more than $500,000 upon the
consummation of a private financing, no consideration shall be required to be
paid hereunder by AMSE to Financial Advisor with respect to any such private
financing. Notwithstanding anything contained herein to the contrary, the
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Parties hereto hereby agree that in no event shall the following compensation
(inclusive of the issuance of any options or warrants hereunder), together with
any compensation payable by AMSE to any underwriter or placement agent in
connection with any such private placement or second public offering, exceed in
the aggregate the maximum permitted by the National Association of Securities
Dealers, Inc., which the Parties hereto hereby believe to be eighteen (18%)
percent of the gross proceeds of such offering. The Parties hereto hereby agree
and acknowledge that it is the intention of the Parties hereto that such
compensation (together with any other compensation payable by AMSE to any
underwriter or placement agent) not be deemed excess compensation by such
regulatory body. In the event such aggregate compensation, as described above,
is or may be so deemed to be excess compensation, the Parties hereto hereby
agree to restructure such compensation arrangement payable hereunder to
Financial Advisor to ensure that such aggregate compensation may not be deemed
excess compensation. In calculating the amount of compensation payable hereunder
for the foregoing purposes, the Parties agree to use the standards and/or
guidelines utilized by the National Association of Securities Dealers, Inc. to
value non-cash elements of compensation.
(i) Financial Advisor shall be compensated for the
consummation of any private placement financing(s), and paid at closing
out of the proceeds of the Financing, as follows: a success fee based
on a "Modified Xxxxxx Formula", as follows: 7.5% of the first $500,000;
5% of the next two million dollars of gross proceeds; 4% of the next
two million dollars of gross proceeds; 3% of the next two million
dollars of gross proceeds; 2% of the next two million dollars of gross
proceeds; and 1% of the transaction value in excess of $8.5 million,
PROVIDED HOWEVER, that if AMSE identifies the funding source, or in the
event of a second public offering, then the compensation provided to
the Financial Advisor shall be fifty percent (50%), of the success fee
calculated hereunder;
(ii) In addition to the cash compensation to be paid
to Financial Advisor upon the closing of a Financing as described in
Paragraph (i) above, Financial Advisor shall be entitled to participate
in the equity of AMSE after a private placement financing or a second
public offering has been consummated and the proceeds realized by AMSE.
Specifically, Financial Advisor shall receive 0.5% of the outstanding
Common Stock of AMSE for each $500,000 of equity capital raised by
Financial Advisor up to a maximum amount of 5% of AMSE's outstanding
Common Stock, based on the number of shares of Common Stock issued and
outstanding immediately after each equity capital raise. If, however,
any such private placement financing, or second public offering was
identified by AMSE prior to the execution of this Agreement (See
Exhibit A, attached hereto and incorporated herein by reference, for a
list of such funding sources) the equity that Financial Advisor shall
receive shall be fifty percent (50%) of the amount indicated above, up
to a maximum amount of two and one-half percent (2.5%) of AMSE's
outstanding Common Stock.
(iii) In addition to the grant of equity as detailed
herein, Financial Advisor shall receive options to purchase shares of
Common Stock of AMSE under the following terms and conditions:
Financial Advisor shall receive options to purchase 0.75% of AMSE's
Common Stock for each $500,000 of cash consideration received by AMSE
pursuant to the efforts of Financial Advisor, up to a maximum amount of
5% of AMSE's outstanding Common Stock, based on the number of shares of
Common Stock issued and outstanding immediately after each equity
capital raise. If, however, any such private placement financing, or
second public offering was identified by AMSE prior to the execution of
this Agreement (See Exhibit A for list of such funding sources), then
the amount of the options that Financial Advisor shall receive shall be
fifty percent (50%) of the amount indicated above, up to a maximum
amount of two and one-half percent (2.5%) of AMSE's outstanding Common
Stock. Said options shall expire three (3) years from the date of
issuance of the options, which date shall be the date as of the
consummation of such Financing. The exercise price of the options shall
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be the greater of 120% of the per share price paid by an investor(s)
pursuant to the Financing or 120% of the exercise price of any
derivative securities issued to an investor in connection with the
Financing; and the options may not be exercised during the first year
of the issuance. The Company agrees to provide reasonable piggyback
rights with regard to such options.
(iv) The Financial Advisor hereby agrees to provide
AMSE's designee, Xxxxxx X. Xxxxx, his successors and or his assigns,
with an irrevocable seven (7) year proxy with respect to the voting
rights associated with any shares beneficially owned by Financial
Advisor, its successors, transferees and/or assigns, except as provided
below, obtained by the Financial Advisor pursuant to this Agreement.
Financial Advisor agrees that the certificates evidencing such shares
shall bear an appropriate restrictive legend evidencing such proxy.
Moreover, Financial Advisor hereby agrees to give AMSE and/or Xxxxxx X.
Xxxxx a right of first refusal, as more fully described below, with
respect to the sale or other disposition of all or a portion of such
shares during the term said proxy is in effect. Financial Advisor
further agrees to normal and reasonable lock-up provisions requested by
a bona fide underwriter of a second public offering with respect to the
shares obtained or otherwise acquired pursuant to the terms of this
Agreement. Financial Advisor further agrees to execute any reasonable
documentation required by AMSE in connection with the foregoing. In
addition, and notwithstanding anything contained herein to the
contrary, provided the above-right of first refusal is adhered to, any
purchaser of such shares who purchases such shares pursuant to a public
sale of the same effectuated on an exchange or on an inter-dealer
quotation system, shall not be bound by such proxy requirement.
(v) With respect to the right of first refusal
granted AMSE and/or Xxxxxx X. Xxxxx in Section (iv) above, the parties
hereto hereby agree that in the event of a contemplated public sale of
any such shares by Financial Advisor, Financial Advisor hereby agrees
to notify AMSE and Xxxxxx Xxxxx in writing of any such contemplated
public sale, including any price limitations associated with such sale.
AMSE and/or Xxxxxx X. Xxxxx shall have five (5) days from the date
notice is deemed given hereunder to so notify Financial Advisor in
writing of the exercise of such right of first refusal with respect to
all or any of such shares, and, if exercised, the consummation of the
sale of such shares shall be effectuated within five (5) days after
notice is deemed given hereunder of such exercise. The per share price
payable by the Company and/or Xxxxxx X. Xxxxx shall be the fifteen (15)
day average closing price of the shares, as reported on any exchange or
inter-dealer quotation system, including the "pink sheets" or the
bulletin board, that the shares are then publicly traded, for the
fifteen (15) trading days for which quotations are readily available
immediately preceding the day prior to the date said notice is given
hereunder by Financial Advisor. Any said notice by Financial Advisor
shall include the computation for such share price, and if such price
is disputed by AMSE or Xxxxxx X. Xxxxx, the parties hereto hereby agree
to use their best efforts to resolve the same. If no so notice is given
within such five (5) day period by the Company and/or Xxxxxx Xxxxx,
then Financial Advisor may publicly sell such shares the subject of
such notice within the thirty (30) day period commencing as of the
earlier of (i) the date AMSE and Xxxxxx X. Xxxxx notify the Financial
Advisor that they are not exercising such right of first refusal and
(ii) the date said five day period during which Xxxxxx X. Xxxxx and/or
the Company must notify Financial Advisor of their desire to exercise
such right of first refusal expires. In the event Financial Advisor
does not sell any of the shares within said thirty (30) day period,
then with respect to such shares not so sold, the right of first
refusal shall remain in effect and the foregoing procedure must be
followed in its entirety with respect to any such future sales. In the
event of any private sales or dispositions of such shares, the
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foregoing procedure with respect to the public sale must be adhered to,
with the following modifications: The identity of a bona-fide third
party offeror, together with all other information reasonably requested
by the Company and/or Xxxxxx X. Xxxxx must be made available to Xxxxxx
X. Xxxxx and the Company, including the terms and conditions of such
third party offer. The right of first refusal shall be at a price per
share equal to the lower of (i) the bona fide third party offer, as
evidenced by a written offer of such third party and (ii) the market
price (as determined above for public sales). In addition, AMSE and/or
Xxxxxx X. Xxxxx shall have fifteen (15) days to respond to such offer,
instead of the five days with respect to public sales, and the thirty
day period during which Financial Advisor must consummate the
transaction shall commence as of the earlier of the dates specified
above with respect to public sales, as described above, except that the
second measuring date shall be at the end of the fifteen day period,
described in the forepart of this sentence. All bona-fide non-public
sales and/or dispositions, including gifts and distributions, must
provide that the purchaser and/or transferee, including any donees,
agree to be bound by the proxy requirements set forth above. In
addition, any dispositions for no consideration, i.e. gifts and/or
distributions, must provide that such transferees and/or donees agree
to bo bound by the terms of the afore-described rights of first
refusal. In addition, Financial Advisor agrees and acknowledges that,
notwithstanding anything contained herein to the contrary, the ability
of Financial Advisor to dispose of any such shares may be limited
and/or restricted by applicable law and regulation, including, without
limitation, the prohibition against trading on inside or non-public
information, which the Financial Advisor may be privy to as a
consequence of the services being provided hereunder to AMSE.
(vi) Notwithstanding anything contained herein to the
contrary, Financial Advisor hereby agrees that at no time shall
Financial Advisor beneficially own (including all options and other
derivative securities owned of record or beneficially by Financial
Advisor) in excess of 9.9% of the then outstanding shares of Common
Stock of AMSE. To the extent, any issuance of options or the issuance
of equity hereunder causes Financial Advisor to so beneficially own
such equity, as described above, in excess of such percentage, then the
amount of options and/or shares issuable hereunder shall be reduced
such that such ownership shall not exceed such percentage. Financial
Advisor further agrees and acknowledges Financial Advisor's obligation
to act in accordance with applicable securities laws and regulations,
including those prohibitions on effectuating transactions on insider or
non-public information.
(vii) As additional consideration and in lieu of
"small" fees as more fully detailed above, AMSE agrees to pay Financial
Advisor a monthly consulting fee, as of the first day of each month, in
the amount of $2,000 beginning as of the date of this Agreement
(pro-rated, however for the first month based upon the number of days
remaining is such month based upon the date of this Agreement). The
parties hereby agree that the first such monthly consulting fee payment
shall be deferred for a period of up to ninety (90) days from the date
of this Agreement. In addition, to the extent that AMSE, in its sole
determination, which shall not be unreasonably applied, determines that
it does not have sufficient cashflow with which to make such payments,
such payments shall be waived. Otherwise, if AMSE determines that it
has sufficient cash flow to make such payments, it will make such
payments to Financial Advisor as provided for herein. Accordingly,
Financial Advisor shall serve as a consultant to AMSE with respect to
such matters as may from time to time be requested by the Board of
Directors of AMSE, any of its subsidiaries, or members of AMSE's
Executive Committee, provided that, for the period of time twenty-four
(24) months subsequent to the completion of a private placement or
second public offering pursuant to which AMSE realizes gross proceeds
from any such transaction of not less than $15,000,000, or until the
expiration of this Agreement (whichever is sooner), the consulting fee
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shall increase to $5,000 per month.
(c) OTHER CONSIDERATION: In addition to any fees that may be
payable to the Financial Advisor hereunder and regardless of whether any
Transaction or Financing is consummated:
(i) AMSE will be responsible for all of its legal and
other professional fees associated with the preparation and review of
any necessary documentation and the closing of any agreed upon
Transaction. Any investor or acquisition candidate will be responsible
for all of his or its legal and other professional fees associated with
the closing of any agreed upon Transaction. Should Financial Advisor
choose to retain professionals in addition to those retained by AMSE,
then Financial Advisor will be solely responsible for all such legal
and professional fees unless approved in advance and in writing by
AMSE. In the event either Party shall enforce any remedy at law or in
equity arising from this Agreement and is the prevailing Party in such
action, it shall be entitled to recover its reasonable attorneys' fees
and costs including on appeal from the non-prevailing Party.
(ii) AMSE hereby agrees from time to time upon
request to reimburse the Financial Advisor (a) for all reasonable
travel, and all other out-of-pocket expenses incurred in performing the
services hereunder (provided that the reimbursement for expenses in
excess of $200.00 shall be subject to the prior approval of AMSE, such
approval not to be unreasonably withheld; and (b) for all reasonable
travel, and out-of-pocket expenses incurred in assisting AMSE to
prepare for, or defend against any action, suit, proceeding, or claim
brought or threatened to be brought arising out of or based upon our
services hereunder and in providing evidence, producing documents or
otherwise participating in any such action, suit, proceeding, or claim
except in the event that the costs are incurred as a result of the
ordinary negligence or willful misconduct of the Financial Advisor.
5. MISCELLANEOUS:
(a) Financial Advisor acknowledges that AMSE will be providing
confidential information to Financial Advisor. The Parties hereto agree that
they will cooperate with each other and provide full due diligence, and that all
conversations, documentation, or work products will be kept in the utmost
confidence. Financial Advisor agrees to execute as part of this Agreement a more
detailed confidentiality and non-disclosure agreement. Likewise, AMSE
acknowledges that Financial Advisor will be providing confidential information
to AMSE. Accordingly, AMSE agrees that the information, including but not
limited to, Financial Advisor's database of investors, methods, systems and
procedures, will be kept confidential and shall not, without the prior written
consent of Financial Advisor, be disclosed by AMSE, except to its attorneys,
accountant and Board of Directors. Financial Advisor intends to introduce AMSE
to its contacts, including private and institutional financing sources or
strategic alliances. AMSE agrees that it will respect Financial Advisor's
relationships with these investors and other sources of financing and that AMSE
shall not participate in or permit the circumvention of any obligation to
Financial Advisor created by this Agreement or any means. Except as otherwise
provided herein, it is agreed that should AMSE (i) complete a transaction or
(ii) receive funds from a financing source introduced by Financial Advisor
within either the period of one (1) year from the date of the initial
introduction, or during the term hereof, whichever period is longer, AMSE shall
pay Financial Advisor its fees according to this Agreement. As used herein, the
term "introduced" or 'introduction" shall mean one or more formal meetings
(where a formal meeting is defined as a meeting with a principal investor or his
authorized agent who has been introduced by Financial Advisor and who has
reviewed AMSE's material and expressed an interest in making an investment in
AMSE and has the financial wherewithal to so make such investment), and shall
exclude sources to whom AMSE is previously known or to whom AMSE has been
previously introduced to by others, directly or indirectly, during the term of
this Agreement or prior to the date of introduction facilitated by Financial
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Advisor hereunder, except such exclusion shall not pertain to those persons
identified on Schedule B, annexed hereto and incorporated herein by reference.
(b)
(i) Recognizing the matters of the type contemplated
in this engagement sometimes result in litigation and that the
Financial Advisor's role is advisory, AMSE agrees to hold the Financial
Advisor harmless and to indemnify the Financial Advisor from and
against any and all losses, claims, damages, liabilities or reasonable
expenses whatsoever as incurred by Financial Advisor in defending any
litigation or proceeding, commenced or threatened, or in connection
with any claim whatsoever, whether or not resulting in any liability,
to which such Financial Advisor may become subject under any applicable
Federal or state law or otherwise caused by or arising out of or based
upon or otherwise relating to or in connection with the Financial
Advisor's engagement hereunder, or any Transaction closed pursuant to
this Agreement. However, such indemnification and contribution shall
not apply to any claim, loss or expense, which has arisen solely from
the Financial Advisor's negligence or willful misconduct in performing
its services hereunder.
(ii) The indemnity provided herein shall remain
operative and in full force and effect regardless of (i) any
withdrawal, termination, or consummation or failure to initiate or
consummate any transaction referred to herein, (ii) any termination or
the completion or expiration of this Agreement or the Financial
Advisor's engagement as AMSE's Financial Advisor and (iii) whether or
not the Financial Advisor shall be called upon to render any formal or
informal advice in the course of such Agreement.
(iii) The invalidity or enforceability of any
particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
(iv) Upon execution, this Agreement may only be
modified by an addendum which shall be in writing signed by both
Parties and which shall be incorporated and merged into this Agreement
as if fully set forth at the time of the initial execution of this
Agreement. All such addendum hereto shall not alter the original terms
and conditions of this Agreement, except as specifically stated in the
addendum.
(v) This Agreement shall not be assigned by either
Party without the prior written consent of the Parties, and that this
understanding extends to any invoices of any kind tendered to AMSE by
Financial Advisor during the life of this Agreement, or outside of this
Agreement by nature of any "side agreements" which may be executed in
the future.
(vi) No waiver by a Party of any default or breach by
any other Party under this Agreement shall operate as a waiver of any
future default or breach, whether of like or different character or
nature.
(c) In consideration of Financial Advisor executing this
Agreement, AMSE shall pay to Financial Advisor a signing bonus in the form of
75,000 shares of AMSE's common stock. Such shares shall be issued by AMSE
pursuant to an exemption under federal and state securities and shall be
restricted shares as held by Financial Advisor. Financial Advisor represents
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that it takes such shares for investment purposes only and not with a view
towards distribution of such shares; and further represents and warrants that
such shares shall only be sold pursuant to an effective registration statement
or pursuant to an applicable exemption under federal and state securities laws.
AMSE agrees that it will allow Financial Advisor certain "piggyback"
registration rights with respect to such shares to the extent and upon the terms
and conditions provided for in the Registration Rights Agreement to be entered
into by and between AMSE and Financial Advisor as of the date of this Agreement.
6. TERMINATION:
(a) Notwithstanding anything contained herein to the contrary,
the Company may terminate this Agreement with the Financial Advisor pursuant to
its terms at any time for cause by giving written notice of termination. Such
termination will become effective upon giving of such notice. Upon any such
termination for cause, the Financial Advisor shall have no right to the
Transaction Fees or other consideration as provided for hereunder. For purposes
of this Agreement, "cause" shall mean: (i) the Financial Advisor or any of its
affiliates is or are indicted of a felony; (ii) the Financial Advisor or any of
its affiliates in carrying out the duties and obligations hereunder, has or have
been accused in a civil action to have committed negligence or misconduct
resulting in either case in material harm to the Company, or (iii) the Financial
Advisor materially breaches any provision of this Agreement and fails to cure
the same during the fifteen (15) day period after notice of the same is given
hereunder to Financial Advisor.
(b) In addition, either Party may terminate this Agreement
upon the occurrence of any of the following events: (i) an assignment by a Party
for the benefit of creditors; or (ii) the filing of a voluntary or involuntary
petition by or against a Party under any federal or state law for the purpose of
adjudicating the other Party bankrupt, or (iii) the filing of a voluntary or
involuntary petition by or against a Party for reorganization, dissolution, or
arrangement on account of or to prevent bankruptcy or insolvency, or (iv) the
appointment of a receiver for the assets of a Party; or (v) loss of any permit
or approvals needed to conduct the business of the Parties. Each of the
foregoing events shall constitute a default hereunder and a breach of this
Agreement. All remedies of both Parties hereunder are cumulative and may, to the
extent permitted by law, be exercised concurrently or separately, and the
exercise of any one remedy shall not preclude the exercise of any other remedy.
No failure or delay on the part of either Party to exercise any right or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise by either Party of any right or remedy hereunder preclude any other or
further exercise of any right or remedy. If any payment is not made when due
hereunder, the Parties shall pay interest on such payment at the maximum rate
permitted by Florida law.
7. NOTICE: Any notice required or permitted by this Agreement shall be
in writing and shall be deemed given at the time it is deposited in the United
States Mail, postage prepaid, certified or registered mail, return receipt
requested or hand delivered with a receipt addressed to the Party whom it is to
be given to the addresses first indicated above, and with respect to AMSE,
addressed to the attention of Xxxxxx X. Xxxxx, President, and with respect to
Capitalink, addressed to the attention of Xxxxx X. Xxxxxx, President.
Either Party may change its address to which notices shall be sent by a notice
similarly sent.
8. GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida and venue
for any dispute relating to or arising under this Agreement shall be in
Miami-Dade County, Florida courts.
9. ENTIRE AGREEMENT. This Agreement represents the entire understanding
of the Parties with respect to the subject matter hereof and supersedes and
merges herein all prior negotiations, understanding, agreements and
representations. No amendment of this Agreement shall be binding or any affect
unless in writing duly signed by the Party against which such amendment is
sought to be enforced.
10. HEADINGS. Any titles herein have been inserted as a matter of
convenience of reference only and shall not control or affect the meaning or
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construction of any of the terms and provisions hereof. As used in this
Agreement, the plural shall include the singular and the singular shall include
the plural whenever appropriate.
11. COUNTERPARTS. The Parties hereto may execute this Agreement in any
number of separate counterparts, each of which, when executed and delivered by
the Parties hereto, shall have the force and effect of any original. All such
counterparts shall be deemed to constitute one and the same instrument.
12. CONFIDENTIALITY. The Parties to this Agreement each agree to keep
the contractual relationship and the terms and conditions herein confidential
except (i) as may be required by force of law including the disclosure
obligations under applicable securities law, (ii) due to demand of any federal
or state or local agency, and (iii) except to the Party's attorney, accountant
or employees who have a need to know. Each Party agrees to notify the other
Party if any other disclosure is required.
It is hereby agreed that the terms and conditions as contained herein
are satisfactory to all Parties and they set their hands and seal to this
Agreement as of the date first set forth above.
CAPITALINK, L.C.
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Managing Director
AMERICA'S SENIOR
FINANCIAL SERVICES, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
President
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