EXHIBIT 10.17
VITAL LIVING, INC.
0000 X. 00XX XXXXXX, XXXXX 000
XXXXXXX, XXXXXXX 00000
July 29, 2002
XXXX & XXXXXXXX, LLC
00-00 Xxxxxxx Xxxxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxx, Manager
Re: Financial Advisor Services
Gentlemen:
This agreement will confirm the terms and other arrangements pursuant to
which Vital Living, Inc. (the "Company") has engaged Xxxx & Xxxxxxxx, LLC
("Advisor" or "Xxxx") to serve as a financial advisor to the Company. For good
and valuable consideration, the sufficiency of which is hereby acknowledged, the
undersigned hereby agree to the following:
Duties of Advisor.
(a) Xxxx agrees to provide general financial advisory services to
the Company relating principally to: (a) developing with the Company a program
to enhance the profile of the Company with institutional and retail investors;
(b) updating and reviewing with the Company on a follow-up basis the
institutional investors who have expressed interest in the Company, (d)
assisting the Company with its investor relations profile, including the
reviewing and assisting in the preparation of press releases and their
dissemination to the public, and (e) identifying business opportunities for the
Company.
(b) Advisor shall perform all services subject to the reasonable
direction and approval of the Company's senior financial and business executives
(presently Xxxx Xxxxx and Xxxxxx Xxxxxx) (the "Company Liaisons"). Advisory
shall make reasonably the services of Xxxxxxx Xxxxx and Xxxxx Xxxxx, as agent,
as the principal liaison of the Advisor.
(c) Advisor shall not act as an agent for Company and shall not hold
itself out to third parties as if it had apparent or actual authority to, among
other things, contractually bind the Company, incur liabilities on Company's
behalf, or enter into any other type of written or oral commitment by or on
behalf of the Company.
(d) The Advisor shall provide written reports as to the services
rendered hereunder no less frequently than quarterly, and shall respond verbally
at the request of the Company to any inquiries made by the Company in that
regard.
2. Term. The term of Advisor's engagement (the "Engagement")
hereunder shall extend for twelve (12) months commencing on the date hereof.
3. Compensation and Expense Reimbursement.
(a) As compensation for the services to be rendered by Advisor
hereunder, the Company shall pay Advisor follows:
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(i) a non-refundable fee of $75,000 upon execution of this
Agreement and thereafter monthly payments of $10,000 of commencing on September
1, 2002 and continuing thereafter until January 1, 2003 (for a total fee of
$125,000); and
(ii) subject to the approval of the Company's Board of
Directors, two hundred thirty five thousand (235,000) restricted shares of the
Company's common stock (the "Shares"), which shares are owned by Xxxxxx Xxxxx, a
director of the Company, as his sole and separate property, who will transfer
the Shares to you. The Company will cause Xxxxx to effectuate the transfer of
100,000 Shares to you upon execution of this Agreement, and the balance of the
Shares will be transferred 60 days after execution of this agreement, subject to
the Company's satisfaction as to the performance of the Advisor of Advisor
duties hereunder. The Shares, when transferred, shall be fully vested, but may
not sold, pledged hypothecated or otherwise transferred, in whole or in part, to
any third party for a period of twelve months from their date of issuance.
(b) All expenses of the Advisor in the performance of Advisor's
duties, responsibilities and obligations hereunder shall by the sole
responsibility of the Advisor.
(c) If the Company requests Advisor to provide advisory, investment
banking and/or other services to the Company in connection with a specific
financing, business combination, or other transaction or series of transactions
(including, without limitation, introductions to customers for the Company's
technologies and/or products) (each a "Transaction"), the Company and the
Advisor shall enter into a separate written agreement providing for the terms
and conditions (including compensation) pursuant to which such services are to
be provided. Notwithstanding the foregoing, Advisor acknowledges that it is a
non-exclusive financial advisor to the Company and that the Company is under no
obligation to retain or to offer to retain the Advisor in connection with any
Transaction.
4. Warranties and Indemnification
(a) Advisor warrants and represents that:
(i) Advisor is authorized, empowered and able to enter into
and fully perform the obligations hereunder;
(ii) Neither Agreement nor the fulfillment thereof shall
infringe upon the personal or property rights of any person, firm or
corporation;
(iii) The services to be rendered hereunder shall not be in
violation of any law, regulation or third party agreement, including but not
limited to any Federal or state security law.
(b) The Company agrees to the indemnification and other agreements
set forth in Exhibit A attached hereto, the provisions of which are incorporated
by reference and shall survive the termination or expiration of this Agreement.
5. Access to Information. In connection with Advisor's engagement and
performance of services hereunder, the Company will furnish Advisor with all
information concerning the Company which Advisor reasonably deems appropriate
and will provide Advisor with access to the Company's officers, directors,
accountants, counsel and other advisors. The Company represents and warrants to
Advisor that all such information concerning the Company will be
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true and accurate in all material respects and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in light of the circumstances
under which such statements are made. The Company acknowledges and agrees that
Advisor will be using and relying upon such information supplied by the Company
and its officers, agents and others and any other publicly available information
concerning the Company without any independent investigation or verification
thereof or independent appraisal by Advisor of the Company or its business
assets.
6. Available Time. Advisor shall make available such time as it, in its
reasonable discretion, shall deem appropriate for the performance of its
obligations under this Agreement.
7. Relationship. Nothing herein shall constitute Advisor as an employee or
agent of the Company, except to such extent as might hereinafter be agreed upon
in writing for a particular purpose. Except as might hereinafter be expressly
agreed, Advisor shall not have the authority to obligate or commit the Company
in any manner whatsoever.
8. Assignment. This Agreement shall not be assignable by any party except
to successors to all or substantially all of the business of either party for
any reason whatsoever without the prior written consent of the other party,
which consent may not be unreasonably withheld by the party whose consent is
required.
9. Amendment. This Agreement may not be amended or modified except in
writing signed by each of the parties.
10. Governing Law. This Agreement and the rights and obligations of the
parties thereto shall be governed by and construed and enforced in accordance
with, the laws of the state of New Jersey without reference to its conflict or
choice of law principles. Each of the parties hereto agrees that any legal
action or proceeding with respect to this Agreement or any other agreement,
document or other instrument executed in connection herewith or therewith, or
any action or proceeding to execute or otherwise enforce any judgment obtained
against the Borrower or any of its properties, may be brought in the courts of
the state of New Jersey in Bergen County, California, or in the federal courts
of the United States for District 17 of New Jersey, as the Company may elect,
provided always that suit also may be brought in the courts of any country or
place where Advisor or any of its assets may be found, and, by execution and
delivery of this Agreement, the Borrower irrevocably submits to each such
jurisdiction. Advisor irrevocably waives any objection which it may now or
hereafter have to the venue of any suit, action or proceeding, arising out of or
relating to this Agreement or any other agreement, document or other instrument
executed in connection herewith brought in the courts of the state of New Jersey
in Bergen County , or in the federal courts of the United States for District 17
of New Jersey, and hereby further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
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Please confirm that the foregoing correctly sets forth our agreement by
signing this enclosed duplicate of this letter in the space provided and
returning it, whereupon this letter shall constitute a binding agreement as of
the date first above written.
Very truly yours,
VITAL LIVING, INC
By:
........................
Name: Xxxx Xxxxx
Title: Chairman and CEO
AGREED AND ACCEPTED AS OF THE
DATE FIRST ABOVE WRITTEN:
Xxxx and Xxxxxxxxx LLC
By:
........................
Name: Xxxxxxx Xxxxx
Title: Manager
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EXHIBIT A
VITAL LIVING, INC.
0000 X. 00XX XXXXXX, XXXXX 000
XXXXXXX, XXXXXXX 00000
July 29, 2002
Gentlemen:
This letter agreement is entered into pursuant to a financial advisory
agreement (the "Agreement"), dated July 29, 2002, between Vital Living, Inc.
(the "Company") and Xxxx and Xxxxxxxxx, LLC ("Xxxx").Unless otherwise noted, all
capitalized terms used herein shall have the meanings set forth in the
Agreement.
Since Xxxx will be acting on behalf of the Company in connection with the
engagement contemplated by the Agreement, and as part of the consideration for
the agreement of Xxxx to furnish its services pursuant to such Agreement, Xxxx
hereby agrees to indemnify and hold harmless the Company and its affiliates and
the respective directors, officers, partners, controlling persons (within the
meaning of Section 15 of the Securities Act of 1933 or Section 20 of the
Securities Exchange Act of 1934), agents, counsel and employees the Company or
any of its affiliates (the Company and each such other person or entity being
referred to individually as an "Indemnified Person" and, collectively, as
"Indemnified Persons") from and against any and all claims, liabilities, losses,
damages, penalties, judgments, awards and expenses incurred by any Indemnified
Person (including fees and disbursements of counsel) which (A) are related to or
arise out of (i) actions taken or omitted to be taken (including any untrue
statements made or alleged to have been made or any statements omitted or
alleged to have been omitted) by Xxxx, its affiliates, directors, employees or
agents or (ii) actions taken or omitted to be taken by an Indemnified Person
with Xxxx'x consent or in conformity with its instructions or its actions or
omissions or (B) are otherwise related to or arise out of Xxxx'x activities on
the Company's behalf in connection with the engagement under the Agreement and
will reimburse the Company and any other Indemnified Person for all costs and
expenses, including counsel fees and disbursements, as they are incurred, in
connection with investigating, preparing and defending any action, formal or
informal claim, investigation, inquiry or other proceeding, whether or not in
connection with pending or threatened litigation, caused by or arising out of or
in connection with Xxxx acting pursuant to the engagement, whether or not Xxxx
or any Indemnified Person is named as a party thereto and whether or not any
liability results therefrom. Xxxx will not, however, be responsible for any
claim, liabilities, losses, damages or expenses pursuant to clause (B) of the
preceding sentence which are finally judicially determined by a court of
competent jurisdiction (not subject to further review) to have resulted
primarily from the Company's willful misconduct or gross negligence. Xxxx also
agrees that neither the Company nor any other Indemnified Person shall have any
liability to Xxxx for or in connection with such engagement except for any such
liability for claims, liabilities, losses, damages, or expenses incurred by Xxxx
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which is finally judicially determined to have resulted primarily from the
Company's willful misconduct or gross negligence.
In order to provide for just and equitable contribution, if a claim for
indemnification is made pursuant to these provisions but is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification is not available for any reason even though the
express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and Xxxx on the other hand, shall contribute to such
claim, liability, loss, damage or expense for which such indemnification or
reimbursement is held unavailable in such proportion as is appropriate to
reflect the relative benefits to the Company, on the one hand, and Xxxx on the
other hand, in connection with the actions contemplated by the engagement,
subject to the limitation that in any event the Xxxx'x aggregate contribution to
all losses, claims, damages, liabilities and expenses to which contribution is
available hereunder shall not exceed the amount of fees actually received by
Xxxx pursuant to the Agreement.
The foregoing right to indemnity and contribution shall be in addition to
any rights that Xxxx or any other Indemnified Person may have at common law or
otherwise and shall remain in full force and effect following the completion or
any termination of Xxxx'x engagement. The Company hereby consents to personal
jurisdiction and to service and venue in any court in which any claim which is
subject to this agreement is brought against Xxxx or any other Indemnified
Person. Neither termination nor completion of the engagement of Xxxx referred to
above shall affect these provisions which shall remain operative and in full
force and effect.
This agreement shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to agreements made and to be fully
performed therein, without regard to conflicts of law principles, and this
agreement shall otherwise be subject to the provisions of Paragraph 10 of the
Agreement.
Please sign and return an original and one copy of this letter to the
undersigned to indicate your acceptance of the terms set forth herein, whereupon
this letter and your acceptance shall constitute a binding agreement between the
Company and Xxxx as of the date of the Agreement.
Sincerely,
Xxxx & Xxxxxxxx LLC
By:
........................
Name: Xxxxxxx Xxxxx
Title: Manager
Accepted and Agreed
VITAL LIVING, INC.
By: ...........................
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Name: Xxxx Xxxxx
Title: Chief Executive Officer
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