Exhibit 4.17
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 12th day of
April, 2001 among Global Technologies, Ltd., a Pennsylvania corporation ("GT"),
Equilink Capital Partners, LLC, a New York limit liability corporation
("Equilink") and National Securities Corporation ("National").
RECITALS:
GT and Equilink are parties to a Financial Consulting Agreement, dated as
of March 22, 2001 (the "Consulting Agreement"), pursuant to which GT engaged
Equilink. As contemplated by Section 7 of the Consulting Agreement, Equilink
wishes to engage National as its advisor, to aid Equilink in providing
consulting services to GT.
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, the parties, intending to be legally bound for themselves and
their respective heirs, legal representatives, successors and assigns, agree as
follows:
1. PURPOSE. Equilink hereby retains National on a non-exclusive basis
during the Engagement Period (as hereinafter defined) specified to render
financial advice to Equilink in connection with Equilink's engagement by GT.
National shall provide Equilink with the benefits of its best judgment and
efforts. It is understood and acknowledged by the parties that National shall
not be obligated to spend any specific amount of time performing duties
hereunder.
2. TERM AND CONSIDERATION. This Agreement shall be effective for a period
of twelve months commencing on the date first written above (the "Engagement
Period"). Global shall issue to National, upon execution of this Agreement, a
warrant substantially in the form of EXHIBIT A attached hereto.
3. FINANCIAL ADVISORY SERVICES. National, based on its discussions with
Equilink, believes that it may assist Equilink by performing the following
financial advisory services (the "Financial Advisory Services") and National
shall be limited to providing only those such Financial Advisory Services.
(i) Advising Equilink on GT's corporate sponsorship and exposure in
connection with the dissemination of GT corporate information to the
investment community at large;
(ii) Advising Equilink on GT's financial structure of its business model,
as such relates to the public market for GT's equity securities;
(iii) Advising Equilink on GT's acquisition strategy, as such program
relates to the public market for the GT's equity securities;
(iv) Advising Equilink on the timing and structure of any future public
offering or private placement of the GT's equity securities.
In connection with National providing the Financial Advisory Services to
Equilink, Equilink and GT shall provide National with any information that
National deems appropriate. Equilink and GT hereby acknowledges that National
will be using and relying on said information without independent verification
and that National assumes no responsibility for the accuracy and completeness of
any information provided to it. Should Equilink desire National to provide any
financial advisory services not listed above, the parties shall enter into an
additional engagement letter and National's compensation for such additional
services shall be set forth therein.
4. RELATIONSHIPS WITH OTHERS. Equilink and GT acknowledge that National
and/or its affiliates are in the business of providing investment banking,
financial advisory and consulting services to others. Nothing herein contained
shall be construed to limit or restrict National in conducting such business
with respect to others, or in rendering such services to others.
5. CONFIDENTIAL INFORMATION. In connection with the rendering of services
hereunder, National has been or will be furnished with confidential information
concerning GT including, but not limited to, financial statements and
information, cost and expense data, production data, trade secrets, marketing
and customer data, and such other information not generally obtained from public
or published information or trade sources. Such information shall be deemed
"Confidential Material" and, except as contemplated hereby, shall not be
disclosed by National without prior written consent of GT. In the event National
is required by applicable law or legal process to disclose any of the
Confidential Material, it is agreed that National will deliver to GT prompt
notice of such requirement prior to disclosure of same to permit the GT to seek
an appropriate protective order and/or waive compliance of this provision. If,
in the absence of a protective order or receipt of written waiver, National is
nonetheless, in the written opinion of its counsel, compelled to disclose any
Confidential Material, National may do so without liability hereunder provided
that notice of such prospective disclosure is delivered to GT prior to actual
disclosure. Following the termination of this Agreement and a written request by
GT, National shall deliver to GT all Confidential Material.
6. NATIONAL'S LIABILITY & INDEMNIFICATION OF NATIONAL BY EQUILINK AND GT.
(a) In the absence of gross negligence or willful misconduct on the part
of National or National's material breach of this Agreement, National
shall not be liable to Equilink nor GT, nor to any their officers,
directors, employees, agents, representatives, stockholders or
creditors for any action or omission of National or any of its
officers, directors, employees, agents, representatives or
stockholders in the course of, or in connection with, rendering or
performing any services hereunder. Any liability of National in
connection with this Agreement shall be limited to the aggregate fees
received by National hereunder, and shall not include any liability
for incidental, consequential or punitive damages.
(b) Equilink and GT agree to indemnify National in accordance with the
terms of the indemnification agreement attached hereto as Exhibit A,
which is incorporated by reference in its entirety into this Agreement
and made a part hereof.
7. EXPENSES. GT shall reimburse National for all of its actual
out-of-pocket expenses up to $5000. Any additional expense above this amount
should be agreed upon both parties, including but not limited to travel, legal
fees, printing, and other expenses, incurred in connection with the provision of
services hereunder. National will not bear any of the Equilink's or GT's legal,
accounting, printing or other expenses in connection with any transaction
considered or consummated hereby. Unless otherwise specifically stated herein,
neither National, its affiliated companies (including, without limitation,
Olympic Cascade Financial Corporation), nor their directors, employees or agents
is responsible for any fees or commissions payable now or in the future to any
finder or to any other financial or other advisor utilized or retained by
Equilink or GT. Reimbursable expenses will be billed by National to GT on a
monthly basis and GT shall pay such expenses within ten days of receiving such a
xxxx.
8. MERGER & ACQUISITION ADVISORY SERVICES. If Equilink desires National to
provide merger/acquisition advice on GT and GT consummates an acquisition of, or
merger with, another business (a "Business Combination") during the Engagement
Period, then GT shall pay National fees and other forms of compensation as are
customarily received by investment bankers in similar transactions. National's
role and specific compensation with respect to any Business Combination shall be
subject to an additional engagement letter to be executed by National and GT at
such time as is appropriate.
9. LIMITATION UPON THE USE OF ADVICE AND SERVICES.
(a) No person or entity, other than Equilink and GT or any of their
subsidiaries or directors or officers of each of the foregoing, shall
be entitled to make, use of, or rely upon the advice of National to be
given hereunder, and Equilink and GT shall not transmit such advice
to, or encourage or facilitate the use or reliance upon such advice by
others without the prior written consent of National.
(b) Equilink and GT hereby acknowledges that National, for services
rendered as contemplated by this Agreement, makes no commitment
whatsoever to recommend or advise its clients to purchase the
securities of GT. Research reports or corporate finance reports that
may be prepared by National will, when and if prepared, be done solely
on the merits or judgment of analysts of National or any corporate
finance personnel of National.
(c) Equilink and GT hereby acknowledges that National, for services
rendered as contemplated by this Agreement, makes no commitment
whatsoever to make a market in any of GT's securities on any stock
exchange or in any electronic marketplace. Any decision by National to
make a market in any of the GT's securities shall be based solely on
the independent judgment of National's management, employees, and
agents.
(d) Use of National's name in annual reports or any other report or
release of Equilink or GT require the prior written approval of
National unless Equilink or GT is required by law to include
National's name in such annual reports, other report or release, in
which event Equilink or GT, as the case may be, shall furnish to
National copies of such annual reports or other reports or releases
using National's name in advance of publication.
10. TERMINATION. This Agreement may be terminated at any time during the
Engagement Period by National upon five (5) days prior written notice to
Equilink, in the event that National becomes aware of (i) any change in the
business or operations of Equilink or GT which National reasonably believes may
adversely affect National's ability to render the services contemplated
hereunder, (ii) any misrepresentation by Equilink or GT with respect to GT's
business operations, assets, condition (financial or otherwise), results of
operations or prospects, or (iii) any breach by the Equilink or GT of their
obligations under this Agreement.
In the event of termination (i) this Agreement shall become void, without
liability on the part of National or its affiliates, directors, officers or
stockholders, and (ii) National shall be entitled to retain the Warrants and
receive compensation for services it has rendered, including payment for
expenses it has incurred up to the date of such termination.
11. DISCRETION. Nothing contained herein shall require GT to enter into any
transaction based on services provided by National; any such decision shall be
at the GT's sole discretion.
12. SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
13. MISCELLANEOUS.
(a) Any notice or communication between the parties hereto shall be
sufficiently given if sent by certified or registered mail, postage
prepaid, or faxed and confirmed if to:
National at:
National Securities Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Equilink at:
Equilink Capital Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Global Technologies at:
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Notices or other communications shall be deemed to be given on the
date of receipt.
(b) If National shall cease to do business, the provisions hereof relating
to duties of National and compensation by Equilink as it applies to
National shall thereupon cease to be in effect, except for the
Equilink's obligation of payment for services rendered prior thereto.
This Agreement shall survive any merger of, acquisition of, or
acquisition by National and after any such merger(s) or acquisition(s)
shall be binding upon Equilink and GT and the corporations surviving
such merger(s) or acquisition(s).
(c) This Agreement embodies the entire agreement and understanding between
the parties and supersedes any and all negotiations, prior discussions
and preliminary and prior agreements and understandings related to the
subject matter hereof, and may be modified only by a written
instrument duly executed by each party.
(d) This Agreement has been duly authorized, executed and delivered by and
on behalf of the Equilink, GT and National.
(e) This Agreement shall be construed and interpreted in accordance with
the laws of the State of Washington, without regard to its conflict of
laws rules.
(f) There is no relationship of partnership, agency, employment, franchise
or joint venture between the parties. Neither party has the authority
to bind the other or incur any obligation on the other's behalf.
(g) Equilink and GT hereby acknowledge that National is not a fiduciary of
either party, and that National makes no representations or warranties
regarding GT's ability to secure financing, whether now or in the
future.
(h) This Agreement and the rights hereunder may not be assigned by either
party (except by operation of law) and shall be binding upon and inure
to the benefit of the parties and their respective permitted
successors, assigns and legal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
GLOBAL TECHNOLOGIES, LTD. EQUILINK CAPITAL PARTNERS, L.P.
/s/ Xxxxx Xxxxx /s/ Xxxxxx XxXxxx
----------------------------------- ----------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx XxXxxx
Title: Chairman Title:
NATIONAL SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman
EXHIBIT A
INDEMNIFICATION
Recognizing that transactions of the type contemplated in this engagement
sometimes result in litigation and that National Securities Corporation's
("National") role is advisory, Global Technology, Ltd. ("GT") and Equilink
Capital Partners, LP ("Equilink") agree to indemnify and hold harmless National,
its affiliates (including Olympic Cascade Financial Corporation) and their
respective officers, directors, employees, agents and controlling persons
(collectively, the "Indemnified Parties"), from and against any losses, claims,
damages and liabilities, joint or several, related to or arising in any manner
out of any transaction, proposal or any other matter (collectively, the
"Matters") contemplated by the engagement of National hereunder, and will
promptly reimburse the Indemnified Parties for all expenses (including
reasonable fees and expenses of legal counsel) as incurred in connection with
the investigation of, preparation for, or defense of any pending or threatened
claim related to or arising in any manner out of any Matter contemplated by the
engagement of National hereunder, or any action or proceeding arising therefrom
(collectively, "Proceedings"), whether or not such Indemnified Party is a formal
party to any such Proceeding. Notwithstanding the foregoing, neither GT nor
shall be liable in respect to any losses, claims, damages, liabilities or
expenses that a court of competent jurisdiction shall have determined by final
judgment resulted solely from the gross negligence or willful misconduct of an
Indemnified Party. Equilink and GT further agree that each will not, without the
prior written consent of National, settle compromise or consent to the entry of
any judgment in any pending or threatened Proceeding in respect of which
indemnification may be sought hereunder (whether or not National or any
Indemnified Party is an actual or potential party to such Proceeding), unless
such settlement, compromise or consent includes an unconditional release of
National and each other Indemnified Party hereunder from all liability arising
out of such Proceeding.
Equilink and GT agree that if any indemnification or reimbursement sought
pursuant to this letter were for any reason not to be available to any
Indemnified Party or insufficient to hold it harmless as and to the extent
contemplated by this letter, then Equilink and GT shall contribute to the amount
paid or payable by such Indemnified Party in respect of losses, claims, damages
and liabilities in such proportion as is appropriate to reflect the relative
benefits to Equilink and GT and their stockholders on the one hand, and National
on the other, in connection with the Matters to which such indemnification or
reimbursement relates or, if such allocation is not permitted by applicable law,
not only such relative benefits but also the relative faults of such parties as
well as any other equitable considerations. It is hereby agreed that the
relative benefits to the Equilink and GT and/or their stockholders and to
National with respect to National's engagement shall be deemed to be in the same
proportion as (i) the total value paid or received or to be paid or received by
Equilink and GT and/or their stockholders pursuant to the Matters (whether or
not consummated) for which National is engaged to render services bears to (ii)
the fees paid to National in connection with such engagement. In no event shall
the Indemnified Parties contribute or otherwise be liable for an amount in
excess of the aggregate amount of fees actually received by National pursuant to
such engagement (excluding amounts received by National as reimbursement of the
expenses).
Equilink and GT further agree that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to
Equilink and/or GT for or in connection with National's engagement hereunder
except for losses, claims, damages, liabilities or expenses that a court of
competent jurisdiction shall have determined by final judgment resulted solely
from the gross negligence or willful misconduct of such Indemnified Party. The
indemnity, reimbursement and contribution obligations of Equilink and GT shall
be in addition to any liability which Equilink and GT may otherwise have and
shall be binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of Equilink and GT or an Indemnified Party.
The indemnity, reimbursement and contribution provisions set forth herein
shall remain operative and in full force and effect regardless of (i) any
withdrawal, termination or consummation of or failure to initiate or consummate
any Matter referred to herein, (ii) any investigation made by or on behalf of
any party hereto or any person controlling (within the meaning of Section 15 of
the Securities Act of 1933 as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended) any party hereto, (iii) any termination or the
completion or expiration of this letter of National's engagement and (iv)
whether or not National shall, or shall not be called upon to, render any formal
or informal advice in the course of such engagement.
