Exhibit 10.22
BAYBERRY ADVISORS, INC.
10 PLATEAU CIRCLE WEST
BRONXVILLE, NEW YORK 10708
(914) 793-7570
September 30, 1993
Mr. James McCann
President
Teleway, Inc.
1600 Stewart Avenue
Westbury, New York 11590
Dear Mr. McCann:
This will confirm the agreement between Bayberry Advisors, Inc.
("Bayberry") and Teleway, Inc. (the "Company") as follows:
1. The Company has engaged Bayberry, effective as of September 15, 1993,
to provide financial advisory services to the Company, on a
non-exclusive basis, including:
(a) analysis and evaluation of the Company's business and advice to
management of the Company of the results of these analyses;
(b) assistance to the Company in its analysis, evaluation and
negotiation of any proposed financing or restructuring of the
Company, including any proposed joint venture, merger, acquisition
of assets or business by the Company;
(c) with respect to any such joint venture, merger, or any purchase of
assets or business, Bayberry will assist in the analysis and
presentation of all financing bids or proposals with respect to
any acquisition transaction by the Company, the negotiation of
financial aspects of such transaction, and, if, and to the extent
requested by the Company, the closing and consummation of any
proposed transaction(s); and
(d) to otherwise assist the Company in the further development of its
business plan and/or specific projects, as from time to time
agreed to by the parties.
2. Bayberry has accepted, effective as of September 15, 1993, the
engagement described in Paragraph 1 and in that connection, agrees to
keep and maintain all material, non-public information concerning the
Company confidential, and disclose such information only as
contemplated by this Agreement or as required by law;
3. The Company acknowledges and agrees that Bayberry intends to make
proposals and introduce potential financial transactions and investors
to the Company which it believes suitable for the Company and in the
Company's best interests under the specified circumstances. However,
the Company acknowledges that Bayberry makes no direct or implied
representation, warranty, or promise with respect to the ultimate
success of any financial or other proposal or the consummation of any
particular financing or other transaction, or any other result,
financial or otherwise, which might be obtained by the Company by
implementing such any proposals, or considering any such proposed
transaction, or by accepting any such investor. The evaluation and
actual implementation of any such proposals or acceptance of any such
investor shall be the sole decision and responsibility of the Company's
management and shareholders.
4. The Company may make available to Bayberry all information concerning
the business, assets, operations and financial condition of the Company
which Bayberry reasonably requests in connection with the services
performed by Bayberry hereunder. Bayberry may rely upon the accuracy
and completeness of all such information without independent
verification.
5. The Company may refuse to discuss or participate in any transaction
with any party for any reason whatsoever and may terminate negotiations
with any party at any time.
6. As compensation for its services hereunder, the Company shall pay
Bayberry as follows:
(a) An annual retainer of $120,000 payable semi-annually on September
15 and March 15 of each year during the term of this Agreement;
Bayberry acknowledges that it has received the first payment of
$60,000.
(b) In addition, the Company will also pay to Bayberry a mutually
agreed upon transaction fee upon the consummation of any
transaction out of the ordinary course of the Company's business
which results from the services provided by Bayberry [and such
services were necessary for the success of the transaction], if
such transaction is consummated during the term of Bayberry's
engagement hereunder or within 18 months after the effective date
of termination of this Agreement; the foregoing shall not apply,
however, to any transaction involving Conroy's Flowers-to-Go, or
Chemical Venture Partners, which the parties agree are to be
covered by the annual retainer provided for in Section 6(a) above.
2
7. The Company shall promptly reimburse Bayberry, upon receipt of an
invoice therefor, for Bayberry's out-of-pocket expenses incurred during
the period of its engagement hereunder; provided that professional fees
and disbursements shall not be reimbursable if paid to a
professional retained without the Company's approval.
8. The Company shall indemnify Bayberry and hold it harmless as provided
in Appendix A hereto, which is incorporated herein by reference.
9. For a period of two (2) years after the expiration or termination of
this Agreement (or any extension or renewal thereof) Bayberry shall not
provide financial advisory services to any person or entity which is
engaged in the floral or gift giving industry.
10. Any advice provided by Bayberry under this Agreement shall not be
disclosed publicly or made available to third parties without
Bayberry's prior approval.
11. The term of Bayberry's engagement hereunder shall be a period of two
(2) years from September 15, 1993. The provisions of Paragraphs 6
through 9, shall survive any expiration or termination of this
Agreement (or any extension or renewal thereof).
12. This Agreement may not be amended or modified except in writing. This
Agreement shall be governed and construed in accordance with the laws
of the State of New York.
If the foregoing correctly sets forth the understanding and agreement
between Bayberry and the Company, 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.
BAYBERRY ADVISORS, INC.
By: /s/ T. GUY MINETTI
------------------------------------
T. Guy Minetti
AGREED AND ACCEPTED:
TELEWAY, INC.
By: /s/ JAMES McCANN
- ----------------------------------
James McCann, President
3
APPENDIX A
A. The Company shall:
(1) Indemnify Bayberry and hold it harmless against any losses,
claims, damages or liabilities to which Bayberry may become
subject: (a) arising in any manner out of or in connection
with (i) actions taken or omitted to be taken (including any
untrue statements made or statements omitted to be made) by
the Company, or (ii) actions taken or omitted to be taken by
Bayberry in conformity with either (x) instructions of the
Company or (y) actions taken or omitted to be taken by the
Company; or (b) otherwise arising in any manner out of or in
connection with Bayberry's rendering of services hereunder,
unless (in the case of indemnification pursuant to this clause
(b) it is finally judicially determined that such losses,
claims, damages or liabilities arose out of the gross
negligence or bad faith of Bayberry; and
(2) Reimburse Bayberry for any legal or other expenses as
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
Bayberry's rendering of services hereunder.
The Company shall not be liable under this paragraph A with respect to
any claim made against Bayberry, unless Bayberry shall have given the
Company reasonable written notice of, and an opportunity to defend, any
such claim. If any action, suit or proceeding shall be commenced
against, or any claim or demand be asserted against Bayberry, as a
condition precedent to demanding identification under this paragraph A,
Bayberry shall promptly notify the Company in writing. The Company
shall have the right to assume the entire control of, including the
selection of counsel, subject to the right of Bayberry to participate
(at its expense and with counsel of its choice) in, the defense,
compromise or settlement thereof, and in connection therewith, Bayberry
shall cooperate fully in all respects with the Company in any such
defense, compromise or settlement thereof, including, without
limitation, the selection of counsel. The Company will not compromise
or settle any such action, suit, proceeding, claim or demand without
the prior written consent of Bayberry, which consent will not be
unreasonably withheld or delayed. So long as the Company is defending
in good faith any such claim or demand asserted by a third party
against Bayberry, Bayberry shall not settle or compromise such claim or
demand without the prior written consent of the Company, which consent
will not be unreasonably withheld or delayed. Bayberry shall make
available to the Company or its agents all records and other materials
in Bayberry's possession reasonably required by it for its use in
contesting any third party claim or demand, then Bayberry may defend,
through counsel of its own choosing, such action, suit, proceeding,
claim or demand and (so long as Bayberry gives the Company at least 15
days' notice of the terms of the proposed settlement thereof and
permits the Company to then undertake the defense thereof if the
Company objects to the proposed settlement) to settle such action,
suit, proceeding, claim or demand and to recover from the Company under
this Paragraph A.
The Company agrees that the indemnification and reimbursement
commitments set forth in this Paragraph A shall apply whether or not
Bayberry is a formal party to any such lawsuits, claims or other
proceedings, that Bayberry 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, director,
officer, employee or agent of Bayberry.
B. The Company and Bayberry agree that if any indemnification or
reimbursement sought pursuant to the preceding Paragraph A is finally
judicially determined to be unavailable (except with respect to
indemnification pursuant to Paragraph A(1) above for the reasons
specified in Paragraph A(1) above), then (whether or not Bayberry is
the person entitled to indemnification or reimbursement) the Company
and Bayberry shall contribute to the loses, claims, liabilities,
damages and expenses for which such indemnification or reimbursement is
held unavailable in such proportion as is appropriate to reflect the
relative benefits to the Company, on the one had, and Bayberry, on the
other, in connection with the transaction contemplated herein, subject
to the limitation that in any event Bayberry's aggregate contribution
to all losses, claims, liabilities, damages and expenses with respect
to which contribution is available hereunder shall not exceed the
amount f fees actually received by Bayberry hereunder. It is hereby
agreed that the relative benefits to the Company, on the one hand, and
Bayberry, on the other, with respect to any transaction or proposed
transaction contemplated herein shall be deemed to be in the same
proportion as (i) the total value of the transaction contemplated
herein bears to (ii) the fee paid to Bayberry with respect to such
transaction.
BAYBERRY ADVISORS, INC.
10 PLATEAU CIRCLE WEST
BRONXVILLE, NEW YORK 10708
(914) 793-7570
March 8, 1995
Mr. James McCann
President Teleway, Inc.
1600 Stewart Avenue
West bury, New York 11590
Dear Mr. McCann:
This letter shall serve an addendum to the September 30, 1993 Letter
Agreement (the "Agreement") between Bayberry Advisors, Inc. ("Bayberry") and
Teleway, Inc. (the "Company") covering certain financial services provided to
Teleway by Bayberry. The parties hereby agree to the following changes to the
Agreement:
(1) Section 1. - add as section (e); to assist Teleway in effecting its
retail expansion plan through (1) the acquisition of retail florists (2) the
franchising or licensing of the 1-800 Flowers name to retail florists or (3) any
other such venture under which 1-800 Flowers expands its retail distribution.
(2) Section 6. - add as section (e): with respect to the services
provided under Section 1. (3) above, Teleway will pay Bayberry an additional fee
of $120,000 payable monthly.
All other terms and conditions of the Agreement shall remain in force
and will continue for one year from the date of his addendum.
If the foregoing correctly sets forth the understanding and agreement
between Bayberry and the Company, please so indicate by signing below, whereby
this addendum shall constitute a binding agreement as of the date first written
above.
BAYBERRY ADVISORS, INC.
By: /s/ T. Guy Minetti
AGREED AND ACCEPTED;
TELEWAY, INC.
By:
President
BAYBERRY ADVISORS, INC.
10 PLATEAU CIRCLE WEST
BRONXVILLE, NEW YORK 10708
(914) 793-7570
May 8, 1996
Mr. James McCann
President Teleway, Inc.
1600 Stewart Avenue
West bury, New York 11590
Dear Mr. McCann:
This letter shall serve as an addendum to the September 30, 1993 Letter
Agreement and the March 8, 1995 addendum thereto (collectively, the "Agreement")
between Bayberry Advisors, Inc. ("Bayberry") and Teleway, Inc. (the "Company")
covering certain financial services provided to the Company by Bayberry. It is
understood herein that 1-800 Flowers, Inc. is the successor to Teleway and that
all references to the "Company" are references to 1-800 Flowers, Inc.
It is hereby agreed that both parties wish to extend the financial
services covered in the Agreement for a period f one year from the date hereof.
It is further agreed that the compensation for such services will be an annual
retainer of $100,000 payable semi-annually on May 15, 1996 and November 15,
1996.
All other terms and conditions of the agreement shall remain in force
and will continue for one year form the date of this letter.
If the foregoing correctly sets forth the understanding and agreement
between Bayberry and the company, please so indicate by signing below.
BAYBERRY ADVISORS, INC.
By: /s/ T. Guy Minetti
President
AGREED AND ACCEPTED;
1-800 FLOWERS, INC.
By: