Exhibit 10.42
Financial Consulting Agreement
This Agreement is made on [Closing Date], by and between Ambassador
Eyewear Group, Inc., a Delaware corporation having its principal office at
000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 (the "Company"), and X.X.
Xxxxxx & Co., Inc., a New York corporation having an office at 0000 Xx. Xxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("the Consultant").
In consideration of the mutual premises contained herein and on the
terms and conditions hereinafter set forth, the Company and Consultant agree
as follows:
1. Provision of Services.
(a) Consultant shall, to the extent reasonably required in the
conduct of the business of the Company, place at the disposal of the Company
its judgment and experience and, to such extent and at the prior written
request of the President of the Company to the Consultant's Managing Director
of Corporate Finance, provide business development and corporate finance
services to the Company, including the following:
(i) evaluation of the Company's managerial and financial
requirements;
(ii) assistance in recruiting, screening, evaluating and
recommending key personnel, directors, accountants, commercial and
investment bankers, underwriters, attorneys and other professional
consultants;
(iii) assistance in the preparation of budgets and business
plans;
(iv) advice with regard to sales planning and sales activities;
(v) advice with regard to stockholder relations and public
relations matters; and
(vi) evaluation of financial requirements and assistance in
financial arrangements.
Notwithstanding the foregoing, Consultant shall not provide services to the
Company hereunder in connection with mergers, acquisitions, consolidations,
joint ventures and similar corporate finance transactions, which transactions
are instead the subject of a certain letter agreement dated this date between
Consultant and the Company.
(b) In addition to the foregoing, for a period of thirty-six (36)
months, the Consultant shall have the option to select an observer designated
by the Consultant and reasonably acceptable to the Company, to receive notice
of and to attend all meetings of the Board of Directors of the Company (the
"Observer"). Such Observer shall have no voting rights, and shall be
reimbursed for all out-of-pocket expenses incurred in attending meetings
of the Board of Directors. The Company shall hold at least four (4) meetings
of the Board of Directors per year. The Observer will be indemnified by the
Company against any claims arising out of his participation at Board
meetings. Additionally, the Company shall provide the Observer with the same
expense reimbursement and cash allowance in connection with meetings of the
Board of Directors as it provides to non-employee Directors of the Company.
(c) Consultant shall use reasonable efforts in the furnishing of
advice and recommendations, and for this purpose Consultant shall at all
times maintain or keep and make available qualified personnel or a network of
qualified outside professionals for the performance of its obligations under
this Agreement. To the extent reasonably practicable, Consultant shall so
use its own personnel rather than outside professionals.
2. Compensation. In consideration of Consultant's services hereunder,
the Company shall pay Consultant a consulting fee of $6,000 per month,
payable one year in advance on the date hereof (that being the closing date
of the sale of the Company's securities pursuant to a Registration Statement
on Form SB-2 filed with the Securities and Exchange Commission). Consultant
hereby accepts such compensation.
3. Expenses. The Company shall reimburse Consultant for reasonable
expenses incurred by Consultant in connection with its services rendered
hereunder. All expenses in excess of $500 shall be approved in writing by
the Company in advance. Consultant shall invoice the Company for its
expenses incurred. Payment of invoices shall be due upon receipt.
4. Liability; Indemnification.
(a) It is expressly understood and agreed that, in furnishing the
Company with management advice and other services as herein provided, neither
Consultant nor any of its officers, directors, employees or agents (including
without limitation the Observer) shall be liable to the Company, its
stockholders, its creditors or any other person or entity for errors of
judgment or for any act or omission except willful malfeasance, bad faith or
gross negligence in the performance of its duties hereunder. It is further
understood and agreed that Consultant may rely upon information furnished to
it and reasonably believed by it to be accurate and reliable and that, except
as herein provided, Consultant shall not be liable for any loss suffered by
the Company, or by any officer, director, employee, stockholder or creditor
of the Company, by reason of the Company's action or non-action on the basis
of any advice, recommendation or approval of Consultant or any of its
officers, directors, employees or agents.
(b) The Company shall indemnify, save harmless and defend
Consultant and its officers, directors, employees and agents (including
without limitation the Observer) from, against and in respect of any loss,
damage, liability, judgment, cost or expense whatsoever, including counsel
fees, suffered or incurred by it or him by reason of, or on account of, its
status or activities as a consultant to the Company hereunder (and, in the
case of the Observer, his participation in meetings of the Board of Directors
of the Company).
-2-
(c) Consultant shall indemnify, save harmless and defend the
Company and its officers, directors, employees and agents from, against and
in respect of any loss, damage, liability, judgment, cost or expense
whatsoever, including counsel fees, suffered or incurred by it or him by
reason of, or on account of, willful malfeasance, bad faith or gross
negligence in the performance of Consultant's duties hereunder.
(d) In the event that the Consultant is held liable under this
Section 4, the Consultant's liability is limited to the total compensation
received by Consultant pursuant to Section 2 of this Agreement. In no event
shall Consultant be liable for any incidental or consequential damages to the
Company, its stockholders, creditors or any other person or entity even if
advised of the possibility thereof.
5. Status of Consultant. Consultant shall at all times be an
independent contractor of the Company and, except as expressly provided or
authorized by this Agreement, shall have no authority to act for or represent
the Company.
6. Other Activities of Consultant. The Company recognizes that
Consultant now renders and may continue to render management and other
services to other companies which may or may not have policies and conduct
activities similar to those of the Company. Consultant shall be free to
render such advice and other services and the Company hereby consents
thereto. Consultant shall not be required to devote its full time and
attention to the performance of its duties under this Agreement, but shall
devote only so much of its time and attention as Consultant deems reasonable
or necessary for such purposes.
7. Control. Nothing contained herein shall be deemed to require the
Company to take any action contrary to its Certificate of Incorporation or
By-laws, or any applicable statute or regulation, or to deprive its Board of
Directors of its responsibility for and control of the conduct of the affairs
of the Company.
8. Term. Except as provided by Section 1(b) hereof, Consultant's
performance of services hereunder shall be for a term of one year commencing
on the date hereof.
9. In General.
(a) This Agreement sets forth the entire agreement and
understanding between the parties with respect to its subject matter and
supersedes all prior discussions, agreements and understandings of every and
any nature between them with respect thereto. This Agreement may not be
modified except in a writing signed by the parties.
(b) This Agreement has been made in the State of New York and
shall be governed by and construed in accordance with the laws thereof
without regard to principles of conflict of laws. Any proceeding commenced
by either party to enforce or interpret any provision of this Agreement shall
be brought in Monroe County, New York. The Company hereby submits to the
jurisdiction of the federal and state courts located in such County for such
purposes.
-3-
(c) Neither this Agreement nor either party's rights hereunder
shall be assignable by any party hereto without the prior written consent of
the other party hereto.
(d) This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
In Witness Whereof, the parties have caused this Agreement to be signed
by their respective officers or representatives duly authorized on the day
and year first above written.
Ambassador Eyewear, Inc.
By:________________________________
Name: Xxxxx Xxxxxxx
Title: President and Chief Executive Officer
X.X. Xxxxxx & Co., Inc.
By:________________________________
Name: Xxxx X. Xxxxxx
Title:
-4-
