FIRST MONTAUK FINANCIAL CORP.
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
____________, 1999
Xxxxxx's Microbatch Ice Creams, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, President
Gentlemen:
This letter, when executed by the parties hereto, will constitute an
agreement between Xxxxxx's Microbatch Ice Creams, Inc (the "Company") and First
Montauk Financial Corp. ("FMFC") pursuant to which the Company agrees to retain
FMFC and FMFC agrees to be retained by the Company under the terms and
conditions set forth below.
1. The Company hereby retains FMFC to perform consulting services related
to corporate finance and other financial services matters, and FMFC hereby
accepts such retention. In this regard, subject to the terms set forth below,
FMFC shall furnish to the Company advice and recommendations with respect to
such aspects of the business and affairs of the Company as the Company shall,
from time to time, reasonably request upon reasonable notice. In addition, FMFC
shall hold itself ready to assist the Company in evaluating and negotiating
particular contracts or transactions, if requested to do so by the Company, upon
reasonable notice.
2. As compensation for the services described in paragraph 1 above, the
Company shall pay to FMFC a fee of $60,000, for the full term of 24 months,
payable in one installment payable on the date hereof. In addition to the
compensation payable in this Section 2, the Company will reimburse FMFC for any
and all reasonable expenses incurred by FMFC in the performance of its duties
under paragraphs 3 or 4 hereunder, and FMFC shall account for such expenses to
the Company. Such reimbursement shall accumulate and be paid monthly. No
expenses in excess of $1,000 shall be incurred or reimbursed without the prior
consent of the Company. Nothing contained herein shall prohibit FMFC from
receiving any additional compensation under paragraphs 3 and 4 herein or
otherwise.
3. In addition, FMFC shall hold itself ready to assist the Company in
evaluating and negotiating particular contracts or transactions, if requested to
do so by the Company, upon reasonable notice, and will undertake such
evaluations and negotiations upon prior written agreement as to additional
compensation to be paid by the Company to FMFC with respect to such evaluations
and negotiations.
4. The Company and FMFC further acknowledge and agree that FMFC may act as
a finder or financial consultant in various business transactions in which the
Company may be involved, such as mergers, acquisitions or joint ventures. The
Company hereby agrees that if in the event FMFC shall first introduce to the
Company another party or entity, and that as a result of such introduction, a
transaction is consummated, the Company shall pay to FMFC a fee equal to five
percent (5%) of the amount up to $5 million and two and one half percent
(2-1/2%) of the excess, of the consideration received by the Company from
parties introduced to the Company by FMFC in non-financing related transactions
(including mergers, acquisitions, joint ventures and other business
transactions) consummated by the Company with a party introduced to the Company
by FMFC. Such fee shall be paid in cash at the closing of the transaction to
which it relates or at such time as the consideration is received or paid by the
Company, and shall be payable whether or not the transaction involves stock, or
a combination of stock and cash, or is made on the installment sale basis.
5. All obligations of FMFC contained herein shall be subject to FMFC's
reasonable availability for such performance, in view of the nature of the
requested service and the amount of notice received. FMFC shall devote such time
and effort to the performance of its duties hereunder as FMFC shall determine is
reasonably necessary for such performance. FMFC may look to such others for such
factual information, investment recommendations, economic advice and/or
research, upon which to base its advice to the Company hereunder, as it shall
deem appropriate. The Company shall furnish to FMFC all information relevant to
the performance by FMFC of its obligations under this Agreement, or particular
projects as to which FMFC is acting as advisor, which will permit FMFC to know
all facts material to the advice to be rendered, and all material or information
reasonably requested by FMFC. In the event that the Company fails or refuses to
furnish any such material or information reasonably requested by FMFC, and thus
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prevents or impedes FMFC's performance hereunder, any inability of FMFC to
perform shall not be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or restrict the right of
FMFC or of any partner, employee, agent or representative of FMFC, to be a
partner, director, officer, employee, agent or representative of, or to engage
in, any other business, whether of a similar nature or not, nor to limit or
restrict the right of FMFC to render services of any kind to any other
corporation, firm, individual or association.
7. FMFC will hold in confidence any confidential information which the
Company provides to FMFC pursuant to this Agreement unless the Company gives
FMFC permission in writing to disclose such confidential information to a
specific third party. In addition, all confidential information which the
Company provided to FMFC in connection with its initial public offering shall be
considered confidential information for purposes of this Agreement.
Notwithstanding the foregoing, FMFC shall not be required to maintain
confidentiality with respect to information (i) which is or becomes part of the
public domain through no fault of FMFC; (ii) of which it had independent
knowledge prior to disclosure; (iii) which comes into the possession of FMFC in
the normal and routine course of its own business from and through independent
non-confidential sources; or (iv) which is required to be disclosed by FMFC by
governmental requirements. If FMFC is requested or required (by oral questions,
interrogatories, requests for information or document subpoenas, civil
investigative demands, or similar process) to disclose any confidential
information supplied to it by the Company, or the existence of other
negotiations in the course of its dealings with the Company or its
representatives, FMFC shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
8. Each of the Company and FMFC agrees to indemnify and hold harmless each
other, and their respective partners, employees, agents, representatives and
controlling persons (and the officers, directors, employees, agents,
representatives and controlling persons of each of them) from and against any
and all losses, claims, damages, liabilities, costs and expenses (and all
actions, suits, proceedings or claims in respect thereof) and any legal or other
expenses in giving testimony or furnishing documents in response to a subpoena
or otherwise (including, without limitation,
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the cost of investigating, preparing or defending any such action, suit,
proceeding or claim, whether or not in connection with any action, suit,
proceeding or claim in which FMFC or the Company is a party), as and when
incurred, directly or indirectly, caused by, relating to, based upon or arising
out of FMFC's service pursuant to this Agreement. The Company further agrees
that FMFC shall incur no liability to the Company or any other party on account
of this Agreement or any acts or omissions arising out of or related to the
actions of FMFC relating to this Agreement or the performance or failure to
perform any services under this Agreement except for FMFC's intentional or
willful misconduct. This paragraph shall survive the termination of this
Agreement. Notwithstanding the foregoing, no party otherwise entitled to
indemnification shall be entitled thereto to the extent such party has been
determined to have acted in a manner which has been deemed gross negligence or
wilful misconduct regarding the matter for which indemnification is sought
herein.
9. This Agreement may not be transferred, assigned or delegated by any of
the parties hereto without the prior written consent of the other party hereto.
10. The failure or neglect of the parties hereto to insist, in any one or
more instances, upon the strict performance of any of the terms or conditions of
this Agreement, or their waiver of strict performance of any of the terms or
conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
11. This Agreement is for a term of 24 months and may not be terminated by
the Company. This Agreement may be terminated by FMFC at any time upon 30 days'
notice; provided FMFC shall repay any portion of their fee which was not earned
on the effective date of such termination. Paragraphs 4, 7 and 8 shall survive
the expiration or termination of this Agreement under all circumstances.
12. Any notices hereunder shall be sent to the Company and to FMFC at their
respective addresses set forth above. Any notice shall be given by registered or
certified mail, postage prepaid, and shall be deemed to have been given when
deposited in the United States mail. Either party may designate any other
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address to which notice shall be given, by giving written notice to the other of
such change of address in the manner herein provided.
13. This Agreement has been made in the State of New Jersey and shall be
construed and governed in accordance with the laws thereof without giving effect
to principles governing conflicts of law.
14. This Agreement contains the entire agreement between the parties, may
not be altered or modified, except in writing and signed by the party to be
charged thereby, and supersedes any and all previous agreements between the
parties relating to the subject matter hereof.
15. This Agreement shall be binding upon the parties hereto, the
indemnified parties referred to in Section 7, and their respective heirs,
administrators, successors and permitted assigns.
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If you are in agreement with the foregoing, please execute two copies of
this letter in the space provided below and return them to the undersigned.
Very truly yours,
FIRST MONTAUK FINANCIAL CORP.
By:
-------------------------------
Name:
Title:
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN
XXXXXX'S MICROBATCH ICE CREAMS, INC.
By:
--------------------------------
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