X.X. XXXXXXXX & CO., INC.
NEWPORT OFFICE TOWER
000 XXXXXXXXXX XXXXXXXXX/00xx XXXXX
XXXXXX XXXX, XX 00000
April 8, 1998
Via Facsimile 000-000-0000
Xx. Xxxxx Xxxxxx
President
Solucorp Industries, Ltd.
000 Xxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
Gentlemen:
This will confirm the understanding and agreement between X.X. Xxxxxxxx &
Co., Inc. ("Xxxxxxxx") and Solucorp Industries, Ltd. ("Solucorp") as follows:
1. Solucorp hereby engages Xxxxxxxx on an exclusive basis to render
financial advisory services to Solucorp looking to the potential of an
eventual sale as hereinafter defined to a party yet to be determined
("Purchaser"), and Xxxxxxxx hereby accepts such engagement. Xxxxxxxx
agrees to provide financial advisory services to Solucorp which shall
include advising on transaction structures and assisting in
negotiations and related strategy. This letter agreement is not made
in contemplation of Xxxxxxxx'x finding and/or introducing the
Purchaser to Solucorp but shall not preclude Xxxxxxxx from acting in
this manner as well.
2. For purposes of this Agreement, a "sale" shall mean any transaction or
series or combination of transactions, other than in the ordinary
course of trade or business, whereby, directly or indirectly, a
material interest (i.e., 10% or more) in Solucorp or any of its
subsidiaries, or any of their respective assets, is transferred for
consideration, including, without limitation, a sale or exchange of
capital stock of the shareholders of Solucorp, or assets, a merger or
consolidation, a tender or exchange offer, the formation of a joint
venture, minority investment or partnership, or any similar
transaction, to or with Purchaser.
3. As compensation for the services rendered by Xxxxxxxx hereunder,
Solucorp shall pay Xxxxxxxx one and one-half (1-1/2%) percent of the
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Solucorp Industries, Ltd.
April 8, 1998
page 2
proceeds received by Solucorp or its shareholders, as the case may be,
upon the closing of the sale to Purchaser. Compensation shall be
payable at the closing. If for any reason whatsoever the transaction
fails consummation, no fee or other compensation will be due or
payable.
4. Xxxxxxxx shall bear its own out-of-pocket expenses incurred during the
period of its engagement hereunder with respect to the services to be
rendered by it hereunder, without seeking reimbursement from
Solucorp.
5. Solucorp shall:
(a) indemnify Xxxxxxxx and hold it harmless against any losses,
claims, damages or liabilities to which Xxxxxxxx may become
subject arising in any manner out of or in connection with the
rendering of services by it to Solucorp hereunder, unless it is
finally judicially determined that such losses, claims, damages
or liabilities arose out of the gross negligence or bad faith of
Xxxxxxxx; and
(b) reimburse Xxxxxxxx immediately for any legal or other expenses
reasonably incurred by it in connection with investigating,
preparing to defend or defending any lawsuits, claims or other
proceedings arising in any manner out of or in connection with
the rendering of services to Solucorp hereunder; provided,
however, that in the event a final judicial determination is
made to the effect specified in subparagraph 5(a) above,
Xxxxxxxx will remit to Solucorp any amounts reimbursed under this
subparagraph 5(b).
Solucorp agrees that the indemnification and reimbursement commitments
set forth in this paragraph shall apply whether or not Xxxxxxxx is a
formal party to any such lawsuits, claims or other proceedings, that
Xxxxxxxx is entitled to retain separate counsel of its choice in
connection with any of the matters to which such commitments relate
and that such commitments shall extend upon the terms set forth in
this paragraph to any controlling person, partner, director, officer,
employee or agent of Xxxxxxxx.
6. This letter agreement shall be in effect for a period of three years
from the date hereof. However, compensation shall also be due Xxxxxxxx
upon any
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Solucorp Industries, Ltd.
April 8, 1998
page 3
transaction commenced prior to the expiration of this letter
agreement, even if the sale is completed after termination hereof.
7. Except as required by applicable law, any advice to be provided by
Xxxxxxxx under this Agreement shall not be disclosed publicly or made
available to third parties (except directors, attorneys, advisors,
auditors and employees of Solucorp) without the prior approval of
Xxxxxxxx.
8. Solucorp agrees that Xxxxxxxx has the right to place tombstones or
other announcements in financial and other newspapers and journals at
its own expense describing its services to Solucorp hereunder upon the
consummation of the sale, provided that Xxxxxxxx will submit a copy of
any such materials to Solucorp for its approval, which approval shall
not be unreasonably withheld or delayed.
9. This Agreement may not be amended or modified except in writing and
shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed
solely in such State by the citizens thereof. Any dispute arising out
of this Agreement shall be adjudicated in the courts of the State of
New York or in the United States District Court for the Southern
District of New York, and Xxxxxxxx and Solucorp hereby agree that
service process upon either of the parties by certified mail at the
address shown in this Agreement shall be deemed adequate and lawful.
The parties hereto shall deliver notices to each other by personal
delivery or by certified mail at the address set forth above.
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Solucorp Industries, Ltd.
April 8, 1998
page 4
If the foregoing correctly sets forth the understanding and agreement
between Xxxxxxxx and Solucorp, please so indicate in the space provided for that
purpose below, whereupon this letter shall constitute a binding agreement as of
the date first above written.
X.X. XXXXXXXX & CO., INC.
By: /s/ XXXXXXX XXXXXXXXX
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Xxxxxxx Xxxxxxxxx, President
AGREED:
SOLUCORP INDUSTRIES, LTD.
By: /s/ XXXXX XXXXXX
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