EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
HARBORSTONE
FINANCIAL GROUP, INC.
April 25, 2001
EUROTECH, Ltd.
00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx XX 00000
Attention: Xxx X. Xxxxxxxxx,
President and Chief Executive Officer
Ladies and Gentlemen:
The purpose of this letter is to confirm the engagement of Harborstone
Capital Group, LLC ("Harborstone") by EUROTECH, Ltd. (the "Company") as a
non-exclusive financial and strategic consultant to the Company to assist the
Company in evaluating:
(i) possibilities for improving the Company's capital structure; and
(ii) the Company's strategic alternatives, including, without
limitation, a possible transaction or series or combination of transactions
whereby, directly or indirectly: (a) control of a material interest in part or
all of the Company, one or more material assets or businesses of the Company or
any of its affiliates may be sold, transferred, assigned or combined with those
of a third party, or any similar transaction; or (b) an agreement relating to
the sale, marketing or joint development of the Company's products or services
is entered into.
For purposes of this Agreement, any of the transactions described in
clauses (i) and (ii) above shall be referred to as a "Transaction" and any third
party involved as a principal in a Transaction shall be referred to as a
"Transaction Party".
Section 1. SERVICES TO BE RENDERED. Harborstone will perform such of
the following financial consulting services on the Company's behalf as the
Company may request:
(a) Harborstone will familiarize itself to the extent it deems
appropriate and feasible with the business, operations, properties and financial
condition of the Company and, if appropriate, a Transaction Party, it being
understood that Harborstone shall, in the course of such familiarization, rely
entirely upon publicly available information and such other information as may
be supplied by the Company or the Transaction Party without assuming any
responsibility for independent investigation or verification thereof;
000 Xxxxxxx Xxx., 30th Floor * XXX XXXX, XX 00000 * TEL: (000) 000-0000 *
FAX: (000) 000-0000
EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
EUROTECH, Ltd.
April 25, 2001
Page 2
(b) Harborstone will advise and assist the Company in considering the
desirability of effecting a Transaction, and, if the Company .believes such a
Transaction to be desirable, in developing a general strategy for accomplishing
a Transaction, including advice with respect to the structuring of the terms,
conditions and financing of any proposed Transaction; and
(c) Harborstone will render such other financial consulting services as
may from time to time be agreed upon by Harborstone and the Company.
The parties hereby acknowledge that Harborstone is not registered as a
broker or dealer under the Securities Exchange Act of 1934 (the "1934 Act") and
is not in a position to engage in activities for which such registration would
be required. Notwithstanding anything otherwise to the contrary in this
Agreement, the parties hereby acknowledge and agree that Harborstone's services
to the Company shall be strictly limited to providing consulting services and
that nothing contained herein shall: (a) constitute any commitment or OFFER
WHATSOEVER by Harborstone to underwrite or place any securities; (b) constitute
any commitment or offer whatsoever by Harborstone to contact or identify any
Transaction Party or potential Transaction Party regarding a Transaction; (c)
constitute any commitment or offer whatsoever by Harborstone to effect any
transaction in securities or to induce or attempt to induce the purchase or sale
of any securities; or (d) require Harborstone in performing its duties hereunder
to engage in any activity that would result in Harborstone being required to
register as a broker or dealer under the 1934 Act.
SECTION 2. INFORMATION PROVIDED BY THE COMPANY.
(a) The Company shall make available, and if appropriate shall request
that the Transaction Party make available, to Harborstone all information
concerning the business, operations, properties, prospects and financial
condition of the Company or the Transaction Party, as applicable, that
Harborstone requests in connection with the rendering of services hereunder, and
shall provide Harborstone with reasonable access to the Company's officers,
directors, employees, independent accountants and other advisors and agents as
Harborstone shall deem appropriate.
(b) The Company recognizes and confirms that Harborstone will use and
rely upon the information provided by or on behalf of the Company and its
advisors and agents or the Transaction Party, as the case may be, and their
respective advisors and agents and on publicly available information in
performing the services contemplated hereby. It is understood that in performing
under this engagement Harborstone may assume and rely upon the accuracy and
completeness of, and is not assuming any responsibility for independent
investigation or verification of, such publicly available information and the
information so furnished. It is also understood that Harborstone is not assuming
any responsibility for any independent valuation or appraisal of any of the
assets of the Company or the Transaction Party, as the case may be. The Company
will promptly notify Harborstone if the Company learns of any material
inaccuracy or misstatement in, or any material omission from; any such
information furnished by the Company or the Transaction Party, as the case may
be, or any of their agents or advisors, to Harborstone or of any such publicly
available information.
EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
EUROTECH, LTD.
April 25, 2001
Page 3
SECTION 3 FEES. The Company shall pay to Harborstone for its services
hereunder the .following fees at the times set forth below:
(a) A nonrefundable engagement fee in cash of $250,000.00 (the
"Engagement Fee"); which Harborstone shall be entitled to receive in full upon
execution of this Agreement, but which for the convenience of the Company shall
be payable in four installments as follows: $124,999.00 to be paid upon
execution of this Agreement and three subsequent installments of $41,667.00 per
month, each payable on the first business day of each of the three months
following the execution of this Agreement, such subsequent installments payable
beginning. on May 1, 2001; and
(b) In addition to the fee provided above and the reimbursement of
expenses set forth in Section 4 below (unless Harborstone is determined not to
be entitled to indemnification pursuant to the provisions of Exhibit A hereto),
the Company shall pay to Harborstone the customary hourly fees charged by
Harborstone for each hour that a Harborstone employee shall be required to
testify (or be available on site to testify) in any court, arbitration or
administrative proceedings, or in oral depositions relating thereto, arising out
of or in connection with Harborstone's engagement hereunder, irrespective of
whether such testimony is provided before or after a termination of this
Agreement (the aggregate amount of such fees, the "Court Fees"). If this
Agreement is terminated, any portion of the Engagement Fee and the Court Fees
that remains outstanding shall become immediately due and payable to
Harborstone. Any Court Fees that accrue in connection. with testimony provided
after termination of this Agreement shall be due and payable to Harborstone upon
delivery of an invoice therefor to the Company.
SECTION 4. EXPENSES. Whether or not any Transaction is proposed or
consummated and without in any way reducing or affecting the provisions of
Exhibit A hereto, the Company shall reimburse Harborstone for its reasonable
out-of-pocket expenses incurred in connection with the provision of services
hereunder and the consummation of any Transaction contemplated or attempted
hereby, including, without limitation, fees, disbursements and other charges of
Harborstone's counsel. Out-of-pocket expenses also shall include, without
limitation, travel and lodging, data processing and communication charges,
research and courier services. The Company shall promptly reimburse Harborstone
upon presentation of an invoice or other similar documentation.
SECTION 5 INDEMNITY. The Company expressly agrees to the provisions of
Exhibit hereto, which provide for certain indemnification. by the Company of
Harborstone and certain related persons. Such Exhibit A is an integral part of
this agreement and is incorporated by reference herein. If the Transaction takes
the form of a merger or consolidation, the surviving company thereof shall
assume the indemnification obligations of the Company set forth herein.
SECTION 6. TERM. This agreement and Harborstone's engagement hereunder
may be terminated by either the Company or Harborstone, upon thirty days' prior
written notice thereof to the other party; provided, however, that (a)
termination of Harborstone's engagement hereunder shall not affect the Company's
continuing obligation to indemnify Harborstone and certain related persons as
provided in Section 5 hereof and Exhibit A; (b) Harborstone shall be
EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
EUROTECH, Ltd.
April 25, 2001
Page 4
entitled to receive the full Engagement Fee and the full amount of the Court
Fees; (c) termination of Harborstone's engagement hereunder shall not affect the
Company's obligation to reimburse the expenses accruing prior to such
termination to the extent provided for in Section 4; and (d) this Section 6 and
Section 7 hereof shall survive any termination of this Agreement and termination
of Harborstone's engagement hereunder.
SECTION 7. MISCELLANEOUS.
(a) Except as contemplated by the terms hereof or as required by
applicable law, Harborstone shall keep confidential. all information provided to
it by the Company, unless publicly available or otherwise available to
Harborstone without restriction or breach of any confidentiality agreement, and
shall not disclose such information to any third party, other than in confidence
to its employees, agents, representatives and advisors, without the Company's
prior approval.
(b) Harborstone has been retained under this agreement as an
independent contractor with duties owed solely to. the Company. The advice (oral
or written) rendered by Harborstone pursuant to this agreement is intended
solely for the benefit and use of the Board of Directors of the Company in
considering the matters to which this agreement relates, and the Company agrees
that such advice may not be relied upon by any other person, used for any other
purpose or reproduced, disseminated, quoted or referred to at any time, in any
manner or for any purpose, nor shall any public references to Harborstone be
made by the Company, without the prior written consent of Harborstone.
(c) The Company agrees that Harborstone shall have the right to place
advertisements in financial and other newspapers and journals at Harborstone's
own expense describing its services hereunder; provided, however, that
Harborstone shall submit a copy of any such advertisement to the Company. for
its approval, which approval shall not be unreasonably withheld or delayed.
(d) This agreement may not be amended or modified except by a writing
executed by each of the parties and this agreement, including all controversies
arising from or relating to performance under this agreement, shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to any contrary result otherwise required under applicable rules
concerning conflict or choice of law. The provisions of this agreement,
including; without limitation, the obligation to make the payments set forth in
Section 3 above, shall be binding on the Company and its successors and assigns.
Harborstone may assign its rights and obligations under this agreement to an
affiliate of Harborstone upon the prior written consent of the Company, such
consent not to be unreasonably withheld or delayed.
(e) Any lawsuits with respect to, in connection with or arising out of
this agreement shall be brought in a court for the Southern District of New York
and the parties hereto consent to the jurisdiction and venue of such court for
the Southern District as the sole and exclusive forum, unless such court is
unavailable, for the resolution of claims by the parties arising under or
relating to this agreement. The parties hereto further agree that proper service
of process on a party may be made on any agent designated by such party located
in the State of New York.
EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
EUROTECH, Ltd.
April 25, 2001
Page 5
(f) To the extent permitted by applicable law, the Company and
Harborstone each hereby waive trial by jury in any lawsuit with respect to, in
connection with or arising out of this agreement, or any other claim or dispute
relating to the engagement of Harborstone arising between the parties hereto.
The Company and Harborstone each confirm that the foregoing waivers are informed
and freely made.
(g) This letter agreement may be signed in counterparts, each of which
shall constitute an original and which together shall constitute one and the
same letter agreement.
[The following page is the signature page]
EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
EUROTECH, Ltd.
April 25, 2001
Page 6
If the foregoing correctly sets forth the understanding and agreement
between Harborstone and the Company, please so indicate by signing the enclosed
copy of this letter, whereupon it shall become a binding agreement between the
parties hereto as of the date first above written.
Very truly yours,
Harborstone Capital Group, LLC
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
By: Xxxxxx X. Xxxxxxx,
Member
Accepted and Agreed to as of the day first written above:
EUROTECH, Ltd.
By: /s/ Xxx X. Xxxxxxxxx
--------------------
Name: Xxx X. Xxxxxxxxx
Title: CEO & President
885715.8
EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
EXHIBIT A This Exhibit A is a part of. and incorporated into that
certain Agreement, dated April 25, 2000, (together with this Exhibit A, this
"Agreement") by and among EUROTECH, Ltd. (together with its subsidiaries and
affiliates, the "Company") and Harborstone Financial Group, Inc.
("Harborstone").
The Company shall indemnify and hold harmless flarborstone and its
affiliates, counsel and other professional advisors, and the respective
directors, officers, controlling persons, agents and employees of each of the
foregoing (Harborstone and all of such other persons collectively, the
"Indemnified Parties"), from and against any losses, claims or proceedings
including stockholder actions, damages, judgments, assessments, investigation
costs, settlement costs, fines, penalties, arbitration awards, other
liabilities, costs, fees and expenses (collectively, "Losses") (i) related to or
arising out of any action or failure to act by the Company, the Company's
employees or other agents or Harborstone at the Company's request or with the
Company's consent, or (ii) otherwise related to or arising out of the engagement
of Harborstone under this Agreement or any transaction or conduct in connection
therewith; provided, however that this clause (ii) shall not apply if it is
finally judicially determined by a court of competent jurisdiction that such
Losses arose solely out of the gross negligence or bad faith of such Indemnified
Party. If multiple claims are brought against an Indemnified Party in an
arbitration, with respect to at least one of which indemnification is permitted
under applicable law and provided for under this Agreement, the Company agrees
that any arbitration award shall be conclusively deemed to be based on claims as
to which indemnification is permitted and provided for, except to the extent the
arbitration award expressly states that the award, or any portion thereof, is
based solely on a claim as to which indemnification is not available:
The Company shall further reimburse any Indemnified Party promptly for,
or at the Indemnified Party's option advance amounts sufficient to cover, any
legal or other fees or expenses as they are incurred (i) in investigating,
preparing or pursuing any action or other proceeding (whether formal or
informal) or threat thereof, whether or not in connection with pending or
threatened litigation or arbitration and whether or not any Indemnified Party is
a party (an "Action") and (ii) in connection with enforcing such Indemnified
Party's rights under this Agreement (including, without limitation, its rights
under this Exhibit A); provided, however, that if it is finally judicially
determined by a court of competent jurisdiction that the Losses of such
Indemnified Party arose solely out of the gross negligence or bad faith of such
Indemnified Party, such Indemnified Party will promptly remit to the Company any
amounts reimbursed or advanced under this paragraph.
The Company shall, if requested by Harborstone, assume the defense of
any such Action including the employment of counsel reasonably satisfactory to
Harborstone and will not settle, compromise, consent or otherwise resolve or
seek to terminate any pending or threatened Action (whether of not any
Indemnified Party is a party thereto) unless it obtains the prior written
consent of Harborstone or an express, unconditional release of each Indemnified
Party from all liability relating to such Action and the engagement of
Harborstone under this Agreement. Any Indemnified Party shall be entitled to
retain separate counsel of its choice and participate in the defense of any
Action in connection with any of the matters to which this Exhibit A relates,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless: (i) the Company has failed promptly to assume the
defense and employ counsel or (ii) the named parties to any such Action
(including any impleaded parties) include such Indemnified Party and the
Company, and such Indemnified Person shall have been advised by counsel that
there may be one or more legal defenses available to it which are different from
or in addition to those available to the Company; provided, however that the
Company shall not in such
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EX-10.24 - Consulting Agreement dated April 25, 2001 between Eurotech, Ltd. and
Harborstone Financial Group, Inc.
event be responsible under this Exhibit A for the fees and expenses of more than
one firm of separate counsel (in addition to local counsel) in connection with
any such Action in the same jurisdiction.
The Company agrees that if any right of any Indemnified Party set forth
in the preceding paragraphs is finally judicially determined to be unavailable
(except by reason of the gross negligence or bad faith of such Indemnified
Party), or is insufficient to hold such Indemnified Party harmless against such
Losses as contemplated herein, then the Company shall contribute to such Losses
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and its stockholders, on the one hand, and such
Indemnified Party, on the other hand, in connection with the transactions
contemplated hereby, and (ii) if (and only if) the allocation provided in clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and such Indemnified Party; provided, owe r, that
in no event shall the amount, if any, to be contributed by all Indemnified
Parties exceed the amount of the fees actually received by Harborstone
hereunder. Benefits received (or anticipated to be received) by the Company and
its stockholders shall be deemed to be equal to the aggregate cash consideration
and value of securities or any other property payable, exchangeable or
transferable in any proposed or potential transactions within the scope of this
Agreement, and benefits received by Harborstone shall be deemed to be equal to
the compensation payable by the Company to Harborstone in connection with this
Agreement. Relative fault shall be determined by reference to, among other
things, whether any alleged untrue statement or omission or any other alleged
conduct relates to information provided by the Company or other conduct by the
Company (or the Company's employees or other agents) on the one hand or by
Harborstone on the other hand. The parties hereto agree that it would not be
just and equitable if contribution were determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to above.
The Company also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with advice or services rendered or to be rendered
by any Indemnified Party pursuant to this Agreement, the transactions
contemplated hereby or any Indemnified Party's actions or inactions in
connection with any such advice, services or transactions except for Losses of
the Company that are finally judicially determined by a court of competent
jurisdiction to have arisen solely out of the gross negligence or bad faith of
such Indemnified Party in connection with any such advice, actions, inactions or
services.
The rights of the Indemnified Parties hereunder shall be in addition to
any other rights that any Indemnified Party may .have at common law, by statute
or otherwise. Except as otherwise expressly provided for in this Exhibit A, if
any term, provision, covenant or restriction contained in this Exhibit A is held
by a court of competent jurisdiction or other authority to be invalid, void,
unenforceable or against its regulatory policy; (a) the remainder of the terms,
provisions, covenants and restrictions contained in this agreement all remain in
full force and effect and shall in no way be affected, impaired or invalidated
and (b) in lieu of the invalid, void or unenforceable term there shall be added
as part of this Agreement a provision as similar in terms and commercial effect
to such invalid, void or unenforceable - term as may be possible and remain
valid and enforceable. The reimbursement, indemnity and contribution obligations
of the Company set forth herein shall apply to any modification of this
Agreement and shall remain in full force and effect regardless of any
termination of, or the completion of any Indemnified Person's services under or
in connection with, this Agreement.
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