FINANCIAL ADVISORY AND INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the th day of
, 1996, between Xxxxxxx Xxxxx & Company LLC, with an office at 0000 Xxxxx Xxxx,
Xxxxx Xxx Xxxxxx 00000 ("Advisor"), and Worldwide Entertainment & Sports Corp.,
with an office at 00 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000 (the
"Company").
In consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. PURPOSE: The Company hereby engages Advisor for the term specified
in Paragraph 2 hereof to 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 5 hereof, this
Agreement shall be effective for a period of two years, commencing on the
closing date of the Company's public offering pursuant to the Registration
Statement on Form SB-2 (the "Closing Date"). This Agreement may not be
terminated by the Company. This Agreement may be terminated by the Advisor at
any time upon 30 days' notice; provided the Advisor shall repay any portion of
its fee which was not earned on the effective date of such termination
($2,083.33 multiplied by the number of months paid in advance).
3. DUTIES OF ADVISOR: During the term of this Agreement, Advisor shall
provide the Company with such regular and customary consulting advice as is
reasonably requested by the Company, provided that Advisor shall not be required
to undertake duties not reasonably within the scope of the financial advisory or
investment banking services contemplated by this Agreement. It is understood and
acknowledged by the parties that the value of Advisor's advice is not readily
quantifiable, and that Advisor shall be obligated to render advice upon the
request of the Company, in good faith, but shall not be obligated to spend any
specific amount of time in so doing. Advisor's duties may include, but will not
necessarily be limited to, providing recommendations concerning the following
financial and related matters:
a. Disseminating information about the Company to the
investment community at large;
b. Rendering advice and assistance in connection with
the preparation of annual and interim reports and
press releases;
c. Assisting in the Company's financial public
relations;
d. Arranging, on behalf of the Company, at appropriate
times, meetings with securities analysts of major
regional investment banking firms;
e. Rendering advice with regard to internal operations,
including:
(1) the formation of corporate goals and their
implementation;
(2) the Company's financial structure and its
divisions or subsidiaries;
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(3) securing, when and if necessary and possible,
additional financing through banks and/or
insurance companies; and
(4) corporate organization and personnel; and
f. Rendering advice with regard to any of the following
corporate finance matters:
(1) changes in the capitalization of the Company;
(2) changes in the Company's corporate structure;
(3) redistribution of shareholdings of the
Company's stock;
(4) offerings of securities in public transac-
tions;
(5) sales of securities in private transactions;
(6) alternative uses of corporate assets;
(7) structure and use of debt; and
(8) sales of stock by insiders pursuant to Rule 144
or otherwise.
In addition to the foregoing, Advisor agrees to furnish advice to the
Company in connection with (i) the acquisition and/or merger of or with other
companies, divestiture or any other similar transaction, or the sale of the
Company itself (or any significant percentage, assets, subsidiaries or
affiliates thereof), and (ii) bank financings or any other financing from
financial institutions (including but not limited to lines of credit,
performance bonds, letters of credit, loans or other financings not provided for
in paragraph 4 hereof).
Advisor shall render such other financial advisory and
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investment and/or investment banking services as may from time to time be agreed
upon by Advisor and the Company.
4. COMPENSATION: In consideration for the services rendered by Advisor
to the Company pursuant to this Agreement (and in addition to the expenses
provided for in Paragraph 6 hereof), the Company shall compensate Advisor as
follows:
a. The Company shall pay an aggregate of $50,000 which amount
equals a monthly fee of $2,083.33 for 24 months, with $25,000 to be paid in
full at the Closing Date and $25,000 payable one year thereafter.
b. In the event that Advisor introduces to the Company any party
who enters into a transaction with the Company regarding the acquisition
and/or merger of or with other companies, divestiture or any other similar
transaction, or the sale of the Company itself (or any significant
percentage, assets, subsidiaries or affiliates thereof) and any such
transactions occurs during the three years after the Closing Date, the
Company shall pay fees to Advisor as follows:
CONSIDERATION FEE
------------- ---
$ up to $1,000,000 5% of Consideration
$1,000,001 to $2,000,000 4% of Consideration
$2,000,001 to $3,000,000 3% of Consideration
over $3,000,000 2% of Consideration in excess of
$3,000,000
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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, including without limitation any amounts paid by the Company or any
person or entity to holders of warrants, stock purchase rights, straight or
convertible securities of the Company or any affiliate thereof, options or stock
appreciation rights issued by the Company or any affiliate thereof, options or
stock appreciation rights issued by the Company, whether or not vested, and to
holders of any other securities of any kind whatsoever of the Company, or
pursuant to any employment agreement, consulting agreement, covenant not to
compete, earnout or contingent payment right or similar arrangement, agreement
or understanding, whether oral or written. Any co-broker retained by Advisor
shall be paid by Advisor.
5. EXPENSES OF ADVISOR: In addition to the fees payable hereunder, and
regardless of whether any transaction set forth in Paragraphs 4 hereof is
proposed or consummated the Company shall reimburse Advisor for all reasonable
fees and disbursements, upon prior written approval by the Company of Advisor's
travel and out-of-pocket expenses incurred in connection with the services
performed by Advisor pursuant to this Agreement, including without limitation,
hotels, food and associated expenses and long-distance telephone calls. Such
reimbursement shall be paid monthly upon presentation of receipts.
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6. LIABILITY OF ADVISOR:
a. The Company acknowledges that all opinions and advice (written
or oral) given by Advisor to the Company in connec tion with Advisor's
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 Advisor 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 Advisor, or use Advisor's name in any annual
reports or any other reports or releases of the Company without Advisor's prior
written consent.
b. The Company acknowledges that Advisor 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. Research reports
or corporate finance reports that may be prepared by Advisor will, when and if
prepared, be done solely on the merits or judgment of analysis of Advisor or any
senior corporate finance personnel of Advisor.
7. ADVISOR'S SERVICES TO OTHERS: The Company acknowledges that Advisor
or its affiliates are in the business of providing financial services and
consulting advice to others.
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Nothing herein contained shall be construed to limit or restrict Advisor in
conducting such business with respect to others, or in rendering such advice to
others.
8. COMPANY INFORMATION: The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, Advisor will
use and rely on data, material and other information furnished to Advisor by the
Company. The Company acknowledges and agrees that in performing its services
under this engagement, Advisor may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
9. INDEMNIFICATION: Since Advisor will be acting on behalf of the
Company in connection with its engagement hereunder, the Company and Advisor
hereby each agree to indemnify and hold harmless each other, their partners,
employees, agents, representatives and controlling persons (and the officers,
directors, employees, agents, representatives and controlling persons of each of
them) from and against any and all losses, claims, damages, liabilities, costs
and expenses (and all actions, suits, proceedings or claims in respect thereof)
and any legal or other expenses in giving testimony or furnishing documents in
response to a subpoena or otherwise (including, without limitation, the cost of
investigating, preparing or defending any such action, suit, proceeding or
claim, whether or not in connection with any action, suit, proceeding or
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claim in which the Advisor is a party), as and when incurred, directly or
indirectly, caused by, relating to, based upon or arising out of the services
pursuant to this Agreement so long as the other party has not committed an
intentional or willful misconduct, or shall not have acted grossly negligent, in
connection with the services which form the basis of the claim for
indemnification. The parties further agree that neither party shall incur any
liability on account of this Agreement or any acts or omissions arising out of
or related to the actions of each relating to this 'Agreement or the performance
or failure to perform any services under this Agreement except for such parties
intentional or wilful misconduct. This paragraph shall survive the expiration or
termination of this Agreement.
10. ADVISOR AN INDEPENDENT CONTRACTOR: Advisor shall perform its
services hereunder as an independent contractor and not as an employee of the
Company or an affiliate thereof. It is expressly understood and agreed to by the
parties hereto that Advisor 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. 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,
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return receipt requested, or (ii) by facsimile, to the respective parties as
firt set forth above, or to such other address as either party may notify the
other in writing:
b. 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.
c. This Agreement may be executed in any number of counterparts,
each of which together shall constitute one and the same original document.
d. No provision of this Agreement may be amended, modified or
waived, except in a writing signed by all of the parties hereto.
e. This Agreement shall be construed in accordance with and
governed by the laws of the State of New Jersey, without giving effect to its
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 New Jersey, and they hereby submit to the
exclusive jurisdiction of the courts of the State of New Jersey 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
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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 12(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 XXXXX & COMPANY LLC
By:________________________________
WORLDWIDE ENTERTAINMENT & SPORTS CORP.
By:________________________________
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