Exhibit 4.3
ADVISORY AND INVESMENT BANKING AGREEMENT
This Agreement is made and entered into as of the [__]th day of [_____],
2000 by and between Xxxxxxx Xxxxxxxx Securities Corporation, a Florida
corporation ("Xxxxxxx") and Training Devices International, Inc., a Colorado
corporation (the "Company").
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. PURPOSE: The Company hereby engages Xxxxxxx for the term specified in
Paragraph 2 hereof to render consulting advice to the Company as an investment
banker relating to financial and similar matters upon the terms and conditions
set forth herein.
2. TERM: Except as otherwise specified in paragraph 4 hereof, this
Agreement shall be effective from [THE EFFECTIVE DATE] to [24 months later].
3. DUTIES OF XXXXXXX: During the term of this Agreement,
Xxxxxxx shall seek out Transactions (as hereinafter defined) on behalf of the
Company and shall furnish advice to the Company in connection with any such
Transactions.
4. COMPENSATION: In consideration for the services rendered by Xxxxxxx to
the Company pursuant to this Agreement (and in addition to the expenses provided
for in Paragraph 5 hereof), the Company shall compensate Xxxxxxx as follows:
(a) The Company shall pay Xxxxxxx a fee of $4,000 per month during the
term of this Agreement. The sum of $96,000 shall be payable in full on the date
of this Agreement. In the event that Xxxxxxx ceases its business operations as a
financial advisor and investment banker, materially breaches or is unable to
satisfy its performance obligations hereunder, then Xxxxxxx shall repay to the
Company the pro rata unearned portion of foregoing fee, based on the number of
months for which performance was delivered and the remaining number of months in
the term.
(b) In the event that any Transaction (as hereinafter defined) occurs
during the term of this Agreement or one year thereafter, the Company shall pay
fees to Xxxxxxx as follows:
(i) five percent (5%) of any consideration up to and including $1,000,000
paid pursuant to the Transaction, plus
(ii) four percent (0) of any consideration from $1,000,001 up to and
including $2,000,000 paid pursuant to the Transaction, plus
(iii) three percent (3%) of any consideration from $2,000,001 up to and
including $3,000,000 paid pursuant to the Transaction, plus
(iv) two percent (2%) of any consideration from $3,000,001 up to and
including $4,000,000 paid pursuant to the Transaction, plus
1
(v) one percent (1%) of any consideration greater than $4,000,000 paid
pursuant to the Transaction.
For the purposes of this Agreement, "Consideration" shall mean the
total market value on the day of the closing of stock, cash, assets and all
other property (real or personal) exchanged or received, directly or indirectly
by the Company or any of its security holders in connection with any
Transaction. Any co-broker or brokers retained by Xxxxxxx shall be paid by
Kashner.
For the purposes of the Agreement, a "Transaction" shall mean (a) any
transaction originated by Xxxxxxx, whereby, directly or indirectly, control of
or a material interest in the Company or any of its businesses or any of their
respective assets, is transferred for Consideration, or (b) any transaction
originated by Xxxxxxx whereby the Company acquires any other company or the
assets of any other company or an interest in any other company (an
"Acquisition") or to so act.
In the event Xxxxxxx originates a line of credit with a lender, the
Company and Xxxxxxx will mutually agree on a satisfactory fee for such services
provided based upon reasonable and customary practice in the industry and the
terms of payment of such fee; provided, however, that in the event the Company
is introduced to a corporate partner by Xxxxxxx in connection with a merger,
Acquisition or financing and a credit line develops directly as a result of the
introduction, the appropriate fee shall be the amount set forth in the schedule
above with consideration to be based upon the amount of the line of credit. In
the event Xxxxxxx introduces the Company to a joint venture partner or customer
and sales develop as a result of the introduction, the Company agrees to pay a
fee of five percent (5%) of total sales generated directly from this
introduction during the first two years following the date of the first sale, in
lieu of the fees set forth in the schedule above. Total sales shall mean cash
receipts less any applicable refunds, returns, allowances, credits and shipping
charges and monies paid by the Company by way of settlement or judgment arising
out of claims made by or threatened against the Company. Commission payments
shall be paid on the 15th day of each month following the receipt of customers'
payment. In the event any adjustments are made to the total sales after the
commission has been paid, the Company shall be entitled to an appropriate refund
or credit against future payments under this Agreement. All fees to be paid
pursuant to this Agreement, except as otherwise specified, are due and payable
to Xxxxxxx in cash at the closing or closings of any transaction specified in
Paragraph 4 hereof. In the event that this Agreement shall not be renewed or if
terminated for any reason, notwithstanding any such non-renewal or termination,
Xxxxxxx shall be entitled to a full fee as provided under Paragraphs 4 and 5
hereof, for any transaction for which the discussions were initiated during the
term of this Agreement and which is consummated within a period of twelve months
after non-renewal or termination of this Agreement.
5. EXPENSES OF XXXXXXX: In addition to the fees payable hereunder, and
regardless of whether any transaction set forth in Paragraph 4 hereof is
proposed or consummated the Company shall reimburse Xxxxxxx for all fees and
disbursements of Xxxxxxx'x counsel and Xxxxxxx'x travel and reasonable
out-of-pocket expenses incurred in connection with and in direct furtherance of
the services performed by Xxxxxxx pursuant to this Agreement, including without
limitation, hotels, food and associated expenses and long-distance telephone
2
calls. Xxxxxxx shall obtain the consent of the Company before incurring any
expense over $1,000.
6. LIABILITY OF XXXXXXX:
(a) The Company acknowledges that all opinions and advice (written or
oral) given by Xxxxxxx to the Company in connection with Xxxxxxx'x engagement
are intended solely for the benefit and use of the Company in considering the
transaction to which they relate, and the Company agrees that no person or
entity other than the Company shall be entitled to make use of or rely upon the
advice of Xxxxxxx to be given hereunder, and no such opinion or advice shall be
used for any other purpose or reproduced, disseminated, quoted or referred to at
any time, in any manner or for any purpose, nor may the Company make any public
references to Xxxxxxx, or use Xxxxxxx'x name in any annual reports or any other
reports or releases of the Company without Xxxxxxx'x prior written consent.
(b) The Company acknowledges that Xxxxxxx makes no commitment
whatsoever as to making a market in the Company's securities or to recommending
or advising its clients to purchase the Company's securities, except that
Xxxxxxx has committed to make a market in the Company's securities for at least
45 days after the effective date of the Company's initial public offering.
Research reports or corporate finance reports that may be prepared by Xxxxxxx
will, when and if prepared, be done solely on the merits or judgment of analysis
of Xxxxxxx or any senior corporate finance personnel of Xxxxxxx.
7. XXXXXXX'X SERVICES TO OTHERS: The Company acknowledges that Xxxxxxx or
its affiliates are in the business of providing financial services and
consulting advice to others. Nothing herein contained shall be construed to
limit or restrict Xxxxxxx in conducting such business with respect to others, or
in rendering such advice to others.
8. COMPANY INFORMATION:
(a) The Company recognizes and confirms that, in advising the Company
and in fulfilling its engagement hereunder, Xxxxxxx will use and rely on data,
material and other information furnished to Xxxxxxx by the Company. The Company
acknowledges and agrees that in performing its services under this engagement,
Xxxxxxx may rely upon the data, material and other information supplied by the
Company without independently verifying the accuracy, completeness or veracity
of same.
(b) Except as contemplated by the terms hereof or as required by
applicable law, Xxxxxxx shall keep confidential all material non-public
information provided to it by the Company, and shall not disclose such
information to any third party, other than such of its employees and advisors as
Xxxxxxx determines to have a need to know. Upon termination of this Agreement,
at the request of the Company, Xxxxxxx shall deliver to the Company all
non-public material in its possession relating to the business affairs of the
Company.
9. INDEMNIFICATION:
(a) The Company shall indemnify and hold Xxxxxxx and its directors,
officers, employees and agents harmless against any and all liabilities, claims,
lawsuits, including
3
any and all awards and/or judgments to which it may become subject under the
Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act
of 1934, as amended (the "Act") or any other federal or state statute, at common
law or otherwise, insofar as said liabilities, claims and lawsuits (including
awards and/or judgments) arise out of or are in connection with the services
rendered by Xxxxxxx or any transactions in connection with this Agreement,
except for any liabilities, claims and lawsuits (including awards judgments and
related costs and expenses), arising out of acts or omissions of Xxxxxxx. In
addition, the Company shall also indemnify and hold Xxxxxxx harmless against any
and all reasonable costs and expenses, including reasonable counsel fees,
incurred or relating to the foregoing. If it is finally judicially determined
that the Company will not be responsible for any liabilities, claims and
lawsuits or expenses related thereto, the indemnified party, by his or its
acceptance of such amounts, agrees to repay the Company all amounts previously
paid by the Company to the indemnified person and will pay all costs of
collection thereof, including but not limited to reasonable attorneys' fees
related thereto.
Xxxxxxx shall give the Company prompt notice of any such liability,
claim or lawsuit which Xxxxxxx contends is the subject matter of the Company's
indemnification and the Company thereupon shall be granted the right to take any
and all necessary and proper action, at its sole cost and expense, with respect
to such liability, claim and lawsuit, including the right to settle, compromise
and dispose of such liability, claim or lawsuit, excepting therefrom any and all
proceedings or hearings before any regulatory bodies and/or authorities.
Xxxxxxx shall indemnify and hold the Company and its directors,
officers, employees and agents harmless against any and all liabilities, claims
and lawsuits, including any and all awards and/or judgments to which it may
become subject under the 1933 Act, the Act or any other federal or state
statute, at common law or otherwise, insofar as said liabilities, claims and
lawsuits (including awards and/or judgments) arise out of or are based upon
Xxxxxxx'x gross negligence, useful misconduct, bad faith or any untrue statement
or alleged untrue statement of a material fact or omission at a material fact
required to be stated or necessary to make the statement provided by Xxxxxxx,
not misleading, which statement or omission was made in reliance upon
information furnished in writing to the Company by or on behalf of Xxxxxxx for
inclusion in any registration statement or prospectus or any amendment or
supplement thereto in connection with any transaction to which this Agreement
applies. In addition, Xxxxxxx shall also indemnify and hold the Company harmless
against any and all costs and expenses, including reasonable counsel fees,
incurred or relating to the foregoing.
The Company shall give to Xxxxxxx prompt notice of any such liability,
claim or lawsuit which the Company contends is the subject matter of Xxxxxxx'x
indemnification and Xxxxxxx thereupon shall be granted the right to a take any
and all necessary and proper action, at its sole cost and expense, with respect
to such liability, claim and lawsuit, including the right to settle, compromise
or dispose of such liability, claim or lawsuit, excepting therefrom any and all
proceedings or hearings before any regulatory bodies and/or authorities.
(b) In order to provide for just and equitable contribution under the
Act in any case in which (i) any person entitled to indemnification under this
Section 9 makes claim for indemnification pursuant hereto but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or
4
the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 10 provides for
indemnification in such case, or (ii) contribution under the Act may be required
on the part of any such person in circumstances for which indemnification is
provided under this Section 10, then, and in each such case, the Company and
Xxxxxxx shall contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after any contribution from others) in such
proportion taking into consideration the relative benefits received by each
party from the offering covered by the prospectus with respect to any
transactions in connection with this Agreement (taking into account the portion
of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was assessed, the opportunity to correct and prevent any statement or
omission and other equitable considerations appropriate under the circumstances;
provided, however, that notwithstanding the above in no event shall Xxxxxxx be
required to contribute any amount in excess of 10% of the public offering price
of any securities to which such Prospectus applies; and provided, that, in any
such case, no person guilty of a fraudulent misrepresentation (within the
meaning of Section 11 (f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Within fifteen (15) days after receipt by any party to this Agreement
(or its representative) of notice of the commencement of any action, suit or
proceeding, such party will, if a claim for contribution in respect thereof is
to be made against another party (the "Contributing Party"), notify the
Contributing Party of the commencement thereof, but the omission so to notify
the Contributing Party will not relieve it from any liability which it may have
to any other party other than for contribution hereunder. In case any such
action, suit or proceeding is brought against any party, and such party notifies
a Contributing Party or his or its representative of the commencement thereof
within the aforesaid fifteen (15) days, the Contributing Party will be entitled
to participate therein with the notifying party and any other Contributing Party
similarly notified. Any such Contributing Party shall not be liable to any party
seeking contribution on account of any settlement of any claim, action or
proceeding effected by such party seeking contribution without the written
consent of the Contributing Party. The indemnification provisions contained in
this Section 10 are in addition to any other rights or remedies which either
party hereto may have with respect to the other or hereunder.
10. XXXXXXX AS INDEPENDENT CONTRACTOR : Xxxxxxx shall perform its services
hereunder as independent contractors and not as employees of the Company or an
affiliate thereof. It is expressly understood and agreed to by the parties
hereto that Xxxxxxx shall have no authority to act for, represent or bind the
Company or any affiliate thereof in any manner, except as may be agreed to
expressly by the Company in writing from time to time.
11. MISCELLANEOUS:
(a) This Agreement between the Company and Xxxxxxx constitutes the
entire agreement and understanding of the parties hereto, and supersedes any and
all previous agreements and understandings, whether oral or written, between the
parties with respect to the matters set forth herein.
5
(b) Any notice or communication permitted or required hereunder shall
be in writing and shall be deemed sufficiently given if hand-delivered or sent
(i) postage prepaid by registered mail, return receipt requested, or (ii) by
facsimile, to the respective parties as set forth below, or to such other
address as either party may notify the other in writing:
If to the Company, to: Training De vices International, Inc.
000 X, Xxxxxx Xxxxxxx, Xxxx. #0X
Xxxxxxxxx, Xxxxxxxx 00000-0000
If to Xxxxxxx, to: Xxxxxxx Davidson Securities Corporation
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
(c) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors, legal
representatives and assigns.
(d) This Agreement may be executed in any number of counterparts, each
of which together shall constitute one and the same original document.
(e) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
(f) This Agreement K all be construed in accordance with and governed
by the laws of the State of Colorado, without giving effect to conflict of law
principles. The parties hereby agree that any dispute which may arise between
them arising out of or in connection with this Agreement shall be adjudicated
before a court located in [ ], and they hereby submit to the exclusive
jurisdiction of the courts of the State of Florida located in [ ] and of the
federal courts in the [ ] District of [ ] with respect to any action or legal
proceeding commenced by any party, and irrevocably waive any objection they now
or hereafter may have respecting the venue of any such action or proceeding
brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Agreement, and consent to
the service of process in any such action or legal proceeding by means of
registered or certified mail, return receipt requested, in care of the address
set forth in Paragraph 11 (b) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
XXXXXXX DAVIDSON SECURITIES CORPORATION
By:
------------------------------------
TRAINING DEVICES INTERNATIONAL, INC.
By:
------------------------------------
6
