Exhibit 10.21
FINANCIAL ADVISORY SERVICES AGREEMENT
This Financial Advisory Services Agreement (this "Agreement") is made and
entered into as of July 21, 1998, by and between NE Restaurant Company, Inc., a
Delaware corporation (including its successors, the "Company"), and Xxxxxxxx
Partners, a New York general partnership ("Xxxxxxxx").
WHEREAS, the Company and Xxxxxxxx desire to enter into an agreement
providing for an annual management fee in return for certain services to be
provided to the Company by Xxxxxxxx.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and Xxxxxxxx (the "Parties") hereby agree as
follows:
1. RETENTION OF FINANCIAL ADVISOR; SCOPE OF SERVICES.
(a) Subject to the terms and conditions set forth herein, the Company
hereby retains Xxxxxxxx to act as a financial advisor to the Company during the
Contract Period (as defined in Paragraph 3 below).
(b) As financial advisor to the Company, Xxxxxxxx will, from time to
time provide consultation, assistance and advice with respect to the Company's
financial operations, including without limitation the following:
(i) assistance in the public equity or debt offering process,
including review of documents, road show planning and participation, and general
oversight of legal, accounting and underwriting issues;
(ii) assistance in loan and credit agreement negotiation,
documentation and compliance;
(iii) assistance in upgrading and implementing a long-term
budgeting and planning process and a long-term strategy;
(iv) assistance and advice in connection with public reporting
and disclosure issues;
(v) assistance in developing and maintaining an investor
relations program, which will include preparation of presentations, planning
meetings and attending meetings with analysts; and
(vi) ongoing advice on financial and business activities,
including negotiation strategies, financing alternatives and possible
acquisitions.
(c) The Parties acknowledge that (i) Xxxxxxxx provides financial
advisory services to others and that the services to be performed by Xxxxxxxx
hereunder are provided, in part, as an incident to Xxxxxxxx'x and/or its
affiliates' ownership of capital stock of the Company; (ii) the fees to be paid
to Xxxxxxxx hereunder were established at an amount which is believed to be
reasonable for the services to be performed by Xxxxxxxx hereunder; (iii)
Xxxxxxxx is not an "investment advisor," within the meaning of the Investment
Advisors Act of 1940, as amended, or applicable state laws, or a "broker" or
"dealer" under the Securities Exchange Act of 1934, as amended, or applicable
state securities laws; (iv) the services to be provided by Xxxxxxxx under this
Agreement do not include those of an "investment advisor" (i.e., providing
advice as to the value of securities or the advisability of investing in,
purchasing or selling securities), or those of a "broker" or "dealer" (i.e.,
effecting transactions in securities for the account of the Company or others);
and (v) it is specifically intended by the Parties that Xxxxxxxx'x activities
hereunder will not subject Xxxxxxxx to any regulation or registration under
federal or state laws.
(d) The Parties acknowledge and agree that Xxxxxxxx will make
available any and all of its partners, employees, agents and other resources,
which Xxxxxxxx, at its sole discretion, determines to be necessary for it to
perform its services hereunder.
2. CONTRACT PERIOD AND TERMINATION. Xxxxxxxx shall act as the Company's
financial advisor under this Agreement for a period commencing July 21, 1998,
and continuing through July 20, 2008, and from year to year thereafter (the
"Contract Period"). Upon termination, neither party will have any further
obligation under this Agreement, except for (a) the Company's obligation to pay
to Xxxxxxxx the fees and reimbursements then due pursuant to Paragraph 5 hereof,
which shall continue after such termination until such amounts are paid in full;
and (b) Xxxxxxxx'x confidentiality obligations under Paragraphs 4(b) and 4(c)
hereof, which shall continue in effect for two years after such termination.
3. FURNISHING OF COMPANY INFORMATION; CONFIDENTIALITY.
(a) In connection with Xxxxxxxx'x activities hereunder on the
Company's behalf, the Company shall furnish Xxxxxxxx with all information
concerning the Company and its operations that Xxxxxxxx deems necessary or
appropriate (the "Company Information") and will provide Xxxxxxxx with access to
the Company's books, records, officers, directors, employees, accountants and
counsel. The Company acknowledges and agrees that, in rendering its services
hereunder, Xxxxxxxx will be using and relying on the Company Information without
independent verification thereof or independent appraisal of any of the
Company's assets and may, in its sole discretion, use additional information
contained in public reports or other information furnished by the Company or
third parties.
(b) Xxxxxxxx agrees that the Company Information will be used solely
for the purpose of performing its services hereunder. Subject to the limitations
set forth in Paragraph 4(c) below, Xxxxxxxx will keep the Company Information
provided to it hereunder confidential and will not disclose such Company
Information or any portion thereof, except (i) to a third party contacted by
Xxxxxxxx on behalf of the Company pursuant hereto who has agreed to be bound by
a confidentiality agreement satisfactory in form and substance to the Company,
or (ii) to any other person for which the Company's consent to disclose such
Company Information has been obtained.
(c) Xxxxxxxx'x confidentiality obligations under this Agreement shall
not apply to any portion of the Company Information which (i) at the time of
disclosure to Xxxxxxxx or thereafter is generally available to and known by the
public (other than as a result of a disclosure directly or indirectly by
Xxxxxxxx); (ii) was available to Xxxxxxxx on a nonconfidential basis from a
source other than the Company, provided that such source is not and was not
bound by a confidentiality agreement with the Company; (iii) has been
independently acquired or developed by Xxxxxxxx without violating any of its
obligations under this Agreement; or (iv) the disclosure of which is legally
compelled (whether by deposition, interrogatory, request for documents,
subpoena, civil or administrative investigative demand or other similar
process). In the event that Xxxxxxxx becomes legally compelled to disclose any
of the Company Information, Xxxxxxxx shall provide the Company with prompt prior
written notice of such requirement so that the Company may seek a protective
order or other appropriate remedy and/or waive compliance with the terms of this
Agreement.
4. FEES AND EXPENSES.
(a) During the Contract Period, the Company shall pay to Xxxxxxxx an
annual management fee of $500,000 in cash, which is due and payable at the rate
of $125,000 per quarter on or before March 31, June 30, September 30 and
December 31 of each year, commencing September 30, 1998 and upon termination of
this Agreement.
(b) The Company shall also promptly reimburse Xxxxxxxx or its
partners, employees and agents for all reasonable out-of-pocket expenses
incurred by Xxxxxxxx and its partners, employees and agents in connection with
the performance of Xxxxxxxx'x services under this Agreement during the Contract
Period.
5. INDEMNIFICATION. The Company agrees to indemnify and hold the Advisor
harmless from and against any losses, claims, damages or liabilities (or
actions, including securityholder actions, in respect thereof) related to or
arising out of the Advisor's engagement hereunder or its role in connection
herewith, and will reimburse the Advisor for all reasonable expenses (including
reasonable counsel fees) as they are incurred by the Advisor in connection with
investigating, preparing for or defending any such action or claim, whether or
not in connection with pending or threatened litigation in which the Advisor is
a party. The Company will not, however, be responsible for any claims,
liabilities, losses damages or expenses which are finally judicially determined
to have resulted primarily from the bad faith or gross negligence of the
Advisor. The Company also agrees that the Advisor shall not have any liability
to the Company for or in connection with such engagement, except for any such
liability for losses, claims, damages, liabilities or expenses incurred by the
Company that result primarily from the bad faith or gross negligence of the
Advisor. In the event that the foregoing indemnity is unavailable (except by
reason of the bad faith or gross negligence of the Advisor), then the Company
shall contribute to amounts paid or payable by the Advisor in respect of its
losses, claims, damages and liabilities in such proportion as appropriately
reflects the relative benefits received by, and fault of, the Company and the
Advisor in connection with the matters as to which such losses, claims, damages
or liabilities relate and other equitable considerations; provided, however,
that in no event shall the amount to be contributed by the Advisor exceed the
amount of the fee actually received by the Advisor. The foregoing shall be in
addition to any rights that the Advisor may have at common law or otherwise and
shall extend upon the same terms to and inure to the benefit of any director,
officer, employee, agent or controlling person of the Advisor. The Company
hereby consents to personal jurisdiction, service and venue in any court in
which any claim which is subject to this agreement is brought against the
Advisor or any other person entitled to indemnification or contribution
hereunder.
5. GOVERNING LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE FULLY PERFORMED THEREIN.
6. SUCCESSORS AND ASSIGNS. The benefits of this Agreement shall inure to
the benefit of the Parties, their respective successors, assigns and
representatives, and the obligations and liabilities assumed in this Agreement
by the Parties shall be binding upon their respective successors and assigns.
This Agreement may not be assigned by either Party to an unaffiliated party
without the express written consent of the other Party.
7. NOTICES. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be delivered
personally or sent by certified mail, return receipt requested, recognized
overnight delivery service, or facsimile as follows:
If to the Company: If to Xxxxxxxx:
00X Xxxxxxxx Xxxx 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: President Attention: Xxxxx X. Xxxxxx
Either Party may change its address or facsimile number set forth above by
giving the other Party notice of such change in accordance with the provisions
of this Paragraph 8. A notice shall be deemed given (a) if by personal delivery,
on the date of such delivery, (b) if by certified mail, on the date shown on the
applicable return receipt, (c) if by overnight delivery service, on the day
after the date delivered to the service, or (d) if by facsimile, on the date of
transmission.
8. NATURE OF RELATIONSHIP. The Parties intend that Xxxxxxxx'x relationship
to the Company and the relationship of each partner, employee or agent of
Xxxxxxxx to the Company shall be that of an independent contractor. Nothing
contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between Xxxxxxxx and the Company or their
respective successors or assigns. Neither Xxxxxxxx nor any partner, employee or
agent of Xxxxxxxx shall ever be considered to be an employee of the Company.
9. CAPTIONS. The Paragraph titles herein are for reference purposes only
and do not control or affect the meaning or interpretation of any term or
provision hereof.
10. AMENDMENTS. No alteration, amendment, change or addition hereto shall
be binding or effective unless the same is set forth in a writing signed by a
duly authorized representative of each Party.
11. PARTIAL INVALIDITY. If it is finally determined that any term or
provision hereof is invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term
or provision shall be replaced by a term or provisions that is valid and
enforceable and that comes as close as possible to expressing the intention of
the invalid or unenforceable term or provision.
12. SURVIVAL. All representations, warranties and agreements contained
herein shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Party, and shall survive the execution
and delivery hereof.
13. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the Parties and supersedes any and all prior agreements,
arrangements and understandings relating to the matters provided for herein.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall be considered one and the same agreement.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above by duly authorized representatives of the Company and Xxxxxxxx.
XXXXXXXX PARTNERS NE RESTAURANT COMPANY, INC.
By: /S/ XXXXX X. XXXXXX By: /S/ XXXXXX XXXXX
Xxxxx X. Xxxxxx Name:
General Partner Title:
