EXHIBIT 10.13
NON-EXCLUSIVE FINANCIAL ADVISORY AGREEMENT
This Agreement is made and entered into as of the 1st day of
November, 2000, ("Effective Date") between The Rose Group Corporation of Nevada,
a Nevada corporation (the "Company") and XXXXXX XXXXXX SECURITIES, INC., a Texas
corporation, (the "Financial Advisor").
W I T N E S S E T H:
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WHEREAS, the Financial Advisor is an investment banker and
registered NASD broker- dealer and has experience in providing financial and
business advice to public and private companies; and
WHEREAS, the Company is seeking and the Financial Advisor is willing
to furnish, ON A NON-EXCLUSIVE BASIS, business and financial related advice and
services to the Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of and for the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree as follows:
1. PURPOSE. The Company hereby engages the Financial Advisor for the
term specified in this Agreement to render financial advisory consulting advice
on a non-exclusive basis to the Company as an investment banker relating to
financial, market acceptance and similar matters upon the terms and conditions
set forth herein.
2. REPRESENTATIONS OF THE FINANCIAL ADVISOR AND THE COMPANY. The
Financial Advisor represents and warrants to the Company that (i) it is a member
in good standing of the National Association of Securities Dealers, Inc.
("NASD") and that it is engaged in the securities brokerage business; (ii) in
addition to its securities brokerage business, the Financial Advisor provides
consulting advisory services; and (iii) it is free to enter into this Agreement
and the services to be provided pursuant to this Agreement are not in conflict
with any other contractual or other obligation to which the Financial Advisor is
bound. The Company acknowledges that the Financial Advisor is in the business of
providing financial and public market services and consulting advice (of the
type contemplated by this Agreement) to others and that nothing herein contained
shall be construed to limit or restrict the Financial Advisor in conducting such
business with respect to others, or rendering such advice to others, nor shall
Company be restricted from seeking such, or related services, from other
sources, including other investment banking firms.
3. DUTIES OF THE FINANCIAL ADVISOR. During the term of this
Agreement, the Financial Advisor will provide the Company with consulting advice
as specified below, provided that the Financial Advisor shall not be required to
undertake duties not reasonable within the scope of the consulting advisory
service in which the Financial Advisor is engaged generally. In
performance of these duties, the Financial Advisor shall provide the Company
with the benefits of its best judgment and efforts. It is understood and
acknowledged by the parties that the value of the Financial Advisor's advice is
not measurable in any quantitative manner, and that the amount of time spent
rendering such consulting advice shall be determined according to the Financial
Advisor's discretion.
The Financial Advisor's duties may include, but will not necessarily
be limited to:
(1) Advice relating to corporate financing activities and related
market acceptance of Company's business and securities,
including monitoring the progress and status of the Company's
marketing efforts through Financial Advisor's relationships
with industry investment bankers;
Recommendations relating to specific business operations and
investments;
(1) Advice relating to financial planning;
(2) Advice regarding future finances involving securities of the
Company or any subsidiary;
(3) Advice relating to the content and timing of press releases to
the public.
4. TERM. The term of this Agreement shall commence on the date
hereof (the "Effective Date"), and terminate two years from the date hereof;
provided, however, that this Agreement may be renewed, modified, canceled or
extended upon such terms and conditions as may be mutually agreed upon by the
parties hereto. As set forth in Schedule A with regard to compensation, if for
any reason, the Company is not satisfied with the services rendered by the
Financial Advisor, the Company shall have the right to cancel this agreement and
shall not be obligated to issue the outstanding two hundred thousand shares
which shall be due six months from the date hereof.
5. COMPENSATION. The Company shall compensate the Financial Advisor,
its designee or assign in the manner set forth on Schedule A. To the extent that
such compensation may include Restricted Stock (as defined on Schedule A),
Financial Advisor, its designee(s) or assign(s) represents and warrants that
Financial Advisor, its designee(s) or assign(s) (i) is acquiring the Restricted
Stock solely for its own beneficial account and not with a view to, or resale in
connection with any distribution, and (ii) understands that the Restricted Stock
has not been registered under the Securities Act of 1933, as amended, or any
state securities laws by reason of specific exemptions under the provisions
thereof.
6. EXPENSES. In addition to the compensation payable hereunder, the
Company shall reimburse the Financial Advisor, within five (5) business days of
its request, for any and all out-of-pocket expenses incurred in connection with
the services performed by the Financial Advisor and its counsel pursuant to this
Agreement, including hotel, food and associated expenses, all charges for
travel, long-distance telephone calls and other expenses spent or incurred on
the Company's behalf, provided any expenses must be pre-approved by Company
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prior to being incurred and, in no event shall the expenses to be reimbursed
exceed $2,000 during the term of this Agreement.
7. USE OF ADVICE BY THE COMPANY; PUBLIC MARKET FOR THE COMPANY'S
SECURITIES. The Company acknowledges that all opinions and advice (written or
oral) given by the Financial Advisor to the Company in connection with the
engagement of the Financial Advisor 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 the Financial 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 the Financial
Advisor, or use of the Financial Advisor's name in any annual reports or any
other reports or releases of the Company other than as required by rule or law
without the prior written consent of the Financial Advisor.
The Company acknowledges that the Financial Advisor makes no
commitment whatsoever as to guaranteeing the making of a public trading market
in the Company's securities or to recommending or advising its clients to
purchase the Company's securities; however, nothing contained herein shall
preclude such actions at Financial Advisor's sole discretion and responsibility.
Research reports, corporate finance or like reports that may be prepared by the
Financial Advisor or its contractors or suppliers will, when and if prepared, be
initiated on the merits or judgment of analysis of the Financial Advisor or
prepared by a contractor or supplier, solely on the discretion and judgment of
that individual contractor or supplier.
8. COMPANY INFORMATION; CONFIDENTIALLY. The Company recognizes and
confirms that, in advising the Company and in fulfilling its engagement
hereunder, the Financial Advisor will use and rely on data, material and other
information furnished to the Financial Advisor by the Company. The Company
acknowledges and agrees that in performing its services under this engagement,
the Financial Advisor may rely upon the data, material and other information
supplied by the Company without independently verifying the accuracy,
completeness or veracity of same. In addition, in the performance of its
services, the Financial Advisor may look to such others for such factual
information, economic advice and/or research upon which to base its advice to
the Company hereunder as the Financial Advisor shall in good xxxxx xxxx
appropriate.
Except as contemplated by the terms hereof or as required by
applicable law, the Financial Advisor shall keep confidential all non-public
information provided to it by the Company, and shall not disclose such
information to any third party without the Company's prior written consent,
other than such of its employees and advisors as the Financial Advisor
determines to have a need to know. Company confirms that all public information
given to Financial Advisor or its contractors or suppliers shall be accurate and
comply with SEC Regulation F.D.
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9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless the Financial
Advisor against any and all liabilities, claims, lawsuits,
including any and all awards and/or judgments to which it may
become subject under the Securities Act of 1933, (the "Act"),
the Securities Exchange Act of 1934, as amended (the "1934
Act") or any other federal or state statute, at common law or
otherwise, insofar as said liabilities, claims and lawsuits
(including costs, expenses, awards and/or judgments) arise out
of or are in connection with the services rendered by the
Financial Advisor or any transactions in connection with the
services rendered by the Financial Advisor, except for any
liabilities, claims and lawsuits (including awards and/or
judgments), arising out of willful acts or willful omissions
or negligence of the Financial Advisor. In addition, the
Company shall also indemnify and hold harmless the Financial
Advisor against any and all costs and expenses, including
reasonable counsel fees, incurred relating to the foregoing.
The Financial Advisor shall give the Company prompt notice of
any such liability, claim or lawsuit which the Financial
Advisor 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.
The Financial Advisor shall indemnify and hold the Company
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 Act, the 1934 Act or any other
federal or state statute, at common law or otherwise, insofar
as said liabilities, claims and lawsuits (including costs,
expenses, awards and/or judgments) arise out of or are based
upon any omission or untrue statement or alleged untrue
statement of a material fact required to be stated or
necessary to make the statement therein, not misleading, which
statement or omission was made in reliance upon information
furnished in writing to the Company by or on behalf of the
Financial Advisor for inclusion in any registration statement
or prospectus or any amendment or supplement thereto. In
addition, the Financial Advisor shall also indemnify and hold
the Company harmless against any and all costs and expenses,
including reasonable counsel fees, incurred relating to
willful acts,
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negligence or willful material omissions of Financial Advisor
or relating to the foregoing.
The Company shall give the Financial Advisor prompt notice of
any such liability, claim or lawsuit which the Company
contends is the subject matter of the Financial Advisor's
indemnification and the Financial Advisor 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 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 in any
case in which (i) any person entitled to indemnification under
this paragraph 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 the denial of the last
right of appeal) that such indemnification may not be enforced
in such case notwithstanding the fact that this paragraph
provides for indemnification in such case, or (ii)
contribution may be required on the part of any such person in
circumstances for which indemnification is provided under this
paragraph, then, and in each such case, the Company and the
Financial Advisor 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 or from any
other document or agreement with respect to any transactions
in connection with this Agreement (taking into account the
portion of the proceeds of the transaction 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, that, in any such case, no
person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) 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
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(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 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 paragraph are in addition to any other rights or
remedies which either party hereto may have with respect to
the other or hereunder.
10. THE FINANCIAL ADVISOR AS AN INDEPENDENT CONTRACTOR. The
Financial Advisor shall perform its services hereunder as an independent
contractor and not as an agent or employee of the Company or an affiliate
thereof. It is expressly understood and agreed to by the parties hereto that the
Financial 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. From time to time
Financial Advisor may contract with other entities to perform some of the duties
of Financial Advisor described in Section 3 herein or such other functions as
Financial Advisor in its sole discretion deems appropriate or necessary, and may
compensate such contractors with a portion of the compensation described on
Schedule A.
11. MISCELLANEOUS.
(a) This Agreement between the Company and the Financial
Advisor 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.
(b) Any notice or communication permitted or required
hereunder shall be in writing and shall be deemed
sufficiently given if hand-delivered or sent postage
prepaid by certified or registered mail, return receipt
requested, to the respective parties as set forth below,
or to such other address as either party may notify the
other in writing:
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If to the Company: Rose Group Corporation of Nevada,
Inc.
Attention: Xxxxxxx X. Xxxx
0000 Xxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
If the Financial Advisor: Xxxxxx Xxxxxx Securities, Inc.
Attention: Xxxxxxx Xxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
(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 shall be construed in accordance with and
governed by the laws of the State of Texas, 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 Xxxxxx
County, Texas, and they hereby submit to the exclusive
jurisdiction of the courts of the State of Texas located
in Xxxxxx County, Texas and of the federal courts in the
Southern District of Texas with respect to any action or
legal proceeding commenced by and 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.
(g) This Agreement has been duly authorized, executed and
delivered by and on behalf of the Company and the
Financial Advisor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
THE ROSE GROUP CORPORATION OF NEVADA
By: /s/ Xxxxxxx X. Xxxx
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XXXXXXX X. XXXX, President
XXXXXX XXXXXX SECURITIES, INC.
By: /s/ A. Xxxxx Xxxxxx 3Rd
-------------------------------------------
A. XXXXX XXXXXX 3rd, President
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SCHEDULE "A"
Company shall compensate Financial Advisor for the duties performed
by Financial Advisor under this Agreement, as follows:
The Company shall deliver to Financial Advisor upon execution of
this Agreement, certificates for TWO HUNDRED THOUSAND (200,000) fully-paid and
non-assessable shares of Rose Group Corporation Common Stock which shall be
restricted as to transferability under the federal securities laws ("Restricted
Stock"). The Restricted Stock certificate(s) shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 [OR UNDER ANY APPLICABLE STATE LAW]. THEY MAY NOT BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED [OR UNDER ANY APPLICABLE STATE
LAW], OR FOR WHICH AN EXEMPTION IS AVAILABLE FROM SUCH REGISTRATION AND FOR
WHICH THE COMPANY IS PROVIDED WITH AN OPINION OF COUNSEL TO THE HOLDER,
REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH TRANSFER IS NOT
IN VIOLATION OF ANY OF SAID SECURITIES LAWS.
Six months from the date hereof; the Company shall issue an
additional TWO HUNDRED THOUSAND (200,000) fully-paid and non-assessable shares
of Rose Group Corporation Common Stock which shall be restricted as to
transferability under the federal securities laws ("Restricted Stock"). The
Restricted Stock certificate(s) shall bear the legend as stated above.
If for any reason, the Company is not satisfied with the services
rendered by the Financial Advisor within the first six months of its term, the
Company shall have the right to cancel this agreement and shall not be obligated
to issue the outstanding two hundred thousand shares which otherwise shall be
due six months from the date hereof.
Not later than one year from the date of this Agreement, Company
shall file a XX-0, XX-0, X-0 (or other applicable form) registration with the
Securities and Exchange Commission pursuant to which the Company will register
or qualify the Restricted Stock to the extent requisite to permit the public
offering and sale of the Restricted Stock, and Company will use its best efforts
to cause such registration statement to become effective as promptly a
practicable. The Company shall bear all expenses incurred in connection with the
filing of such registration statement. Regardless of the foregoing, all
Restricted Shares issued pursuant to this Agreement shall have "piggyback"
registration rights in the first and any registrations filed by the Company
subsequent to the date of this Agreement, and all of the shares covered by this
Agreement shall be registered in the first of any such registrations by Company
regardless of whether held by Financial Advisor or any subsequent owner.
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