Consulting Agreement - First Cambridge Securities Corp. and Frost Hanna Capital Group Inc.
FIRST CAMBRIDGE SECURITIES CORPORATION
375 PARK AVENUE
NEW YORK, NEW YORK 10152
___________, 1997
Frost Hanna Capital Group, Inc.
7700 W. Camino Real, Suite 222
Boca Raton, FL 33431
Attention: Mark J. Hanna, President
Re: Consulting Agreement
Gentlemen:
This letter, when executed by the parties hereto, will
constitute an agreement between Frost Hanna Capital Group, Inc. (the
"Company") and First Cambridge Securities Corporation ("First Cambridge")
pursuant to which the Company agrees to retain First Cambridge and First
Cambridge agrees to be retained by the Company under the terms and conditions
set forth below.
1. The Company hereby retains First Cambridge to perform
consulting services related to corporate finance and other financial services
matters, and First Cambridge hereby accepts such retention. In this regard,
subject to the terms set forth below, First Cambridge 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, First Cambridge 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 First Cambridge a fee of $2,000,
for the full term of 24 months, payable in full in advance on the date hereof.
In addition to its monthly compensation hereunder, the Company will reimburse
First Cambridge for any and all reasonable expenses incurred by First Cambridge
in the performance of its duties hereunder, and First Cambridge shall account
for such expenses to the Company; provided, however, that any expenses in
excess of $500 shall require the prior
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written approval of the Company, which will not be unreasonably withheld. Such
reimbursement shall accumulate and be paid monthly. Nothing contained herein
shall prohibit First Cambridge from receiving any additional compensation under
paragraphs 3 and 4 herein or otherwise.
3. In addition, First Cambridge 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 First Cambridge with
respect to such evaluations and negotiations. Nothing herein shall require the
Company to utilize First Cambridge's services in any particular transactions
nor shall limit the Company's obligations arising under any other agreement or
understanding.
4. The Company and First Cambridge further acknowledge
and agree that First Cambridge 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 in the
event First Cambridge 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 First Cambridge a fee equal to five
percent of the amount of the consideration paid in such transaction up to $5
million and two and one half percent of the excess, if any, over $5 million.
Such fee shall be paid in cash at the closing of the transaction to which it
relates, 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. In
addition, if the Company shall, within 12 months immediately following the
termination of this Agreement, consummate a transaction with any party first
introduced by First Cambridge to the Company prior to such termination, the
Company shall pay to First Cambridge a fee with respect to such transaction
calculated in accordance with this paragraph.
5. All obligations of First Cambridge contained herein
shall be subject to First Cambridge's reasonable availability for such
performance, in view of the nature of the requested service and the amount of
notice received. First Cambridge shall devote such time and effort to the
performance of its duties hereunder as First Cambridge shall determine is
reasonably necessary for such performance. First Cambridge 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 First Cambridge all
information reasonably relevant to the performance by First Cambridge of its
obligations under this Agreement, or particular projects as to which First
Cambridge is acting as advisor, which will permit First Cambridge to know all
facts material to the advice to be rendered, and all material or
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information reasonably requested by First Cambridge. In the event that the
Company fails or refuses to furnish any such material or information reasonably
requested by First Cambridge, and thus prevents or impedes First Cambridge's
performance hereunder, any inability of First Cambridge to perform shall not
be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or
restrict the right of First Cambridge or of any partner, employee, agent or
representative of First Cambridge, 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 First
Cambridge to render services of any kind to any other corporation, firm,
individual or association.
7. First Cambridge will hold in confidence any
confidential information which the Company provides to First Cambridge pursuant
to this Agreement unless the Company gives First Cambridge permission in
writing to disclose such confidential information to a specific third party.
In addition, all confidential information which the Company provided to First
Cambridge in connection with its initial public offering shall be considered
confidential information for purposes of this Agreement. Notwithstanding the
foregoing, First Cambridge shall not be required to maintain confidentiality
with respect to information (i) which is or becomes part of the public domain;
(ii) of which it had independent knowledge prior to disclosure; (iii) which
comes into the possession of First Cambridge 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 First Cambridge by governmental
requirements. If First Cambridge 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, First Cambridge shall, unless prohibited by law, promptly
notify the Company of such request(s) so that the Company may seek an
appropriate protective order.
8. The Company agrees to indemnify and hold harmless
First Cambridge, its 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, 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 First
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Cambridge is a party), as and when incurred, directly or indirectly, caused by,
relating to, based upon or arising out of First Cambridge's service pursuant to
this Agreement. The Company further agrees that First Cambridge 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 First Cambridge
relating to this Agreement or the performance or failure to perform any
services under this Agreement except for First Cambridge's intentional or
willful misconduct. This paragraph shall survive the termination of this
Agreement.
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 twenty-four (24)
months and may not be terminated by the Company. This Agreement may be
terminated by First Cambridge at any time upon 30 days' notice; provided First
Cambridge shall repay any portion of their fee which was not earned on the
effective date of such termination ($83.33 multiplied by the number of months
remaining in this agreement). 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 First Cambridge 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 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 York
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
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indemnified parties referred to in Section 7, and their respective heirs,
administrators, successors and permitted assigns.
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 CAMBRIDGE SECURITIES CORPORATION
By:
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An Authorized Representative
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN
FROST HANNA CAPITAL GROUP, INC.
By:
---------------------------
Name:
Title:
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