DRAFT 11/26/97
FORM OF FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This FINANCIAL ADVISORY AND CONSULTING AGREEMENT (the "Agreement") is entered
into as of the ___ day of ____________, 1997, by and between GAY ENTERTAINMENT
TELEVISION, INC., with its principal offices located at ___________________, New
York, New York (the "Company") and THE AGEAN GROUP, INC., with its principal
offices located at One South Ocean Drive, Suite 300, Boca Raton, Florida 33432
("Agean").
WHEREAS, Company is a New York corporation which conducts business and
related services at its principal office location, and
WHEREAS, Agean is a Florida corporation which is in the business of
providing, among other things, general management, financial advisory and
business consulting services, and
WHEREAS, Company wishes to engage Agean to perform certain management,
financial advisory and business consulting services and Agean wishes to perform
such services.
NOW, THEREFORE, in consideration of the mutual promises and covenants
provided for herein, the parties hereto agree as follows:
1. ENGAGEMENT
Agean will provide Company with general financial advisory and business
consulting services in connection with the growth and development of its
business. Such services will include, but not be limited to, assisting the
Company with, the management of its relationships with the investment banking
and broker/dealer community, including advising the Company with respect to
potential mergers and/or acquisitions and other financing proposals,
development, implementation and coordination of a financial management system,
general marketing strategies and ongoing market access and capital demands.
2. TERM
The term of this Agreement shall be for one (1) year, commencing on
___________, 1998.
3. COMPENSATION
Company agrees to pay Agean a one-time non-refundable advisory fee
equal to $145,000 which sum shall be paid at the Final Closing of the Company's
Initial Public Offering.
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In addition to such advisory fee, the Company shall reimburse Agean for
all of its direct and indirect out-of-pocket expenses incurred in the
performance of its duties hereunder. Such reimbursable expenses shall include,
but not be limited to, travel, lodging meals, entertainment, postage, photo
copying and long distance telephone. Agean shall timely provide reasonable
documentation of such reimbursable expenses which shall be paid by the Company
within 15 days of transmittal.
It is understood and agreed that Agean is an independent contractor and
not an employee of the Company and will receive no other benefits, as such are
and may be provided to its employees, except such advisory fee, as provided
herein.
4. CONFIDENTIALITY
The parties acknowledge that they will have access to certain
confidential and proprietary information of the other and that such information
constitutes valuable, special and unique property of each. The parties further
acknowledge and agree that they will not, at any time during or after the term
hereof, in any fashion, form or manner, either directly or indirectly, divulge,
disclose or communicate the terms and conditions of this Agreement or any
information of any kind concerning matters affecting or relating to the business
of the other.
5. REPRESENTATIONS AND WARRANTIES
a. The parties acknowledge their respective authority to enter into
this Agreement and represent that there are no impediments whatsoever to the
performance obligations provided for hereunder.
b. The parties represent that they are not subject to any restriction
that would prohibit them from entering into this Agreement, that each is fully
able to perform as provided for hereunder, and that neither is restricted in any
way from entering into or performing any of its obligations hereunder.
6. INDEMNITY
Company hereby agrees to indemnify, defend and hold Agean, its
directors, officers, principals, employees, agents and affiliates and any
employees thereof, harmless from and against any and all costs, losses, claims,
demands and liabilities, including reasonable attorneys' fees and costs, which
arise out of or relate to any breach by the Company of any of the terms and
conditions of this Agreement; any negligent or intentional wrongful act of the
Company or its principals, directors, officers, employees, representatives or
agents, or any other act by the Company or its principals, directors, officers,
employees, representatives or agents outside the scope of this Agreement. The
terms and conditions of this Section shall survive termination of this
Agreement.
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7. BOARD REPRESENTATION
In connection with the financial advisory and related services to be
provided hereunder, Agean will have the right to appoint an advisor to attend
all meetings of the Board of Directors of the Company, in a non-voting capacity.
8. ASSIGNMENT
This Agreement may not be assigned by Company without the prior written
consent of Agean. This Agreement may be assigned by Agean, in whole or in part,
in its sole and absolute discretion.
9. MISCELLANEOUS
a. EXCLUSIVITY Nothing herein shall prevent Agean from providing the
same or similar services to any other individual or entity and nothing herein
shall prevent the Company from engaging other consultants, provided however, in
the event the Company wishes to engage the services of another consultant to
perform the same or similar services, it may only do so with the prior written
consent of Agean.
b. COOPERATION The parties recognize that certain disputes may arise
with third parties, the resolution of which may require the cooperation of the
other, including, but not limited to, providing factual information and giving
depositions and testimony. Accordingly, at all times during the term of this
Agreement and after its termination, the parties agree to cooperate with the
other to allow such party to advance its position with respect to such dispute
or disputes.
c. COMMITMENTS BINDING ONLY UPON WRITTEN CONSENT It is expressly
understood and agreed that Agean shall not have the right to make any contracts
or commitments for or on behalf of the Company without the prior written consent
of the Company.
d. ENTIRE AGREEMENT This Agreement represents the entire Agreement
between the parties and supersedes all prior and contemporaneous agreements.
This Agreement may only be amended by the mutual written consent of Company and
Agean.
e. WAIVER No waiver or modification of this Agreement shall be valid
unless in writing and duly executed by the parties hereto.
f. GOVERNING LAW/JURISDICTION This Agreement and performance hereunder
shall be construed and enforced, and all lawsuits, actions or proceedings
arising out of or related hereto shall be conducted in accordance with the laws
and within the jurisdiction of the State of Florida.
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g. SEVERABILITY In the event any provision of this Agreement is held to
be unenforceable or invalid under the laws of the United States or of the state
of Florida, the parties hereto agree that such provision shall automatically be
deemed modified for purposes of performance of this Agreement to the extent
necessary to render it lawful and enforceable, or if such modification is not
possible without materially affecting the intent of the parties hereto, that
such provision shall automatically be deemed severed from this Agreement,
without affecting the enforceability of the remainder of this Agreement.
h. NOTICES All notices, requests, demands or other communications
required or permitted hereunder shall be deemed to have been fully given, if
personally delivered or mailed, certified mail return receipt requested, to the
respective party at the address as provided above or to such other place as the
parties may notify each other in writing, pursuant to this Section.
i. MEDIATION/ARBITRATION If a dispute arises out of or relates to this
Agreement, or the breach thereof, and if said dispute cannot be settled through
direct discussion, the parties agree to first endeavor to settle the dispute in
an amicable manner by mediation under the Commercial Mediation Rules of the
American Arbitration Association before resorting to arbitration. Thereafter,
any unresolved controversy or claim arising out of or relating to this Agreement
or a breach thereof shall be settled by arbitration in accordance with the Rules
of the American Arbitration Association, and judgment upon the award rendered by
the Arbitrator may be entered in any court having jurisdiction thereof. Any
provisional remedy which would be available from a court of law shall be
available to the parties to this Agreement from the Arbitrator pending
arbitration. This Agreement shall be governed by the laws of the State of
Florida, and any arbitration arising therefrom shall be venued in Palm Beach
County, Florida.
j. BINDING EFFECT This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
subject to the restriction on assignment set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as
of the date set forth above.
COMPANY ADVISOR
GAY ENTERTAINMENT TELEVISION, INC. THE AGEAN GROUP, INC.
By:________________________ By:________________________
Name:______________________ Name:______________________
Title:_____________________ Title:_____________________
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