Advisory Agreement - THINK New Ideas Inc. and Commonwealth Associates
November __, 1996
THINK New Ideas, Inc.
45 West 36th Street
New York, NY 10018
Attn: Scott Mednick
Chairman and Chief Executive Officer
Dear Mr. Mednick:
This will confirm the arrangements, terms and conditions pursuant to which
Commonwealth Associates (the "Consultant"), has been retained to serve as a
financial consultant and advisor to THINK New Ideas, Inc., a Delaware
corporation (the "Company"), on a non-exclusive basis for services rendered in
association with the Company's initial public offering and terminating on the
closing (the "Closing") of the Company's initial public offering (the
"Offering"). The undersigned hereby agrees to the following terms and
conditions:
1. Duties of Consultant: Consultant shall, at the request of the
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Company, upon reasonable notice, provide such financial consulting services and
advise pertaining to the Company's business affairs as the Company may from time
to time reasonably request.
The services described in this Section 1 shall be rendered by
Consultant without any direct supervision by the Company at such time and place
and in such manner (whether by conference, telephone, letter or otherwise) as
Consultant may determine.
2. Compensation: As compensation for consultant's services hereunder,
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the Company shall pay Consultant, at the Closing, an amount equal to three
percent (3%) of the gross proceeds from the Offering, including any proceeds
from the exercise of the Underwriter's over-allotment option.
3. Additional Compensation in Certain Circumstances: In additional to
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the financial consulting services described in Section 1 above, Consultant may
bring the Company in contact with persons, whether individuals or entities that
may be suitable candidates for providing the Company with, or may lead the
Company to other individuals or entities that may provide the Company with, debt
or equity financing or that may be suitable candidates, or may lead the Company
to such suitable candidates, to purchase substantially all of the stock or
assets of the Company, sell all or substantially all of such candidate's stock
or otherwise transfer control of, or a material interest in, such candidate to
the Company, merge with the Company, or enter into a joint venture, strategic
alliance or other transaction with the Company (a "Transaction"). If the
Company enters into an agreement with any persons or their affiliates, or with
any persons introduced to the Company by any such persons or their affiliates
during the term of this Agreement or within six months of the expiration of the
term of this Agreement, pursuant to
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which the Company enters into a Transaction, the Company will pay to Consultant,
upon the closing of the Transaction, an amount mutually agreeable to both the
Company and Consultant which should be such amount as is generally customary for
the type of Transaction.
4. Available Time: Consultant shall make available such time as it, in
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its sole discretion, shall deem appropriate for the performance of its
obligations under this Agreement and may in certain circumstances be entitled to
additional compensation in connection therewith.
5. Relationship: Nothing herein shall constitute Consultant as an
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employee or agent of the Company, except to such extent as might hereinafter be
agreed upon for a particular purpose. Except as might hereinafter be expressly
agreed, Consultant shall not have the authority to obligate or commit the
Company in any manner whatsoever.
6. Indemnification: Since Consultant will be acting on behalf of the
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Company, the Company agrees to the indemnification provisions attached to this
Agreement as Annex A and incorporated herein in their entirety.
7. Confidentiality: Except in the course of the performance of its
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duties hereunder, Consultant agrees that it shall not disclose any trade
secrets, know-how, or other proprietary information not in the public domain
leaned as a result of this Agreement unless and until such information becomes
generally known.
8. Assignment and Termination: This Agreement shall not be assignable by
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any party except to successors to all or substantially all of the business of
either party for any reason whatsoever without the prior written consent of the
other party, which consent may not be arbitrarily withheld by the party whose
consent is required.
9. Governing Law: This Agreement shall be deemed to be a contract made
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under the laws of the State of New York and for all purposes shall be construed
in accordance with the laws of said State.
Very truly yours,
By:____________________________
Robert Beuret, Vice Chairman
Confirmed and Agreed to this
__ day of November, 1996
THINK NEW IDEAS, INC.
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<PAGE>
By: _______________________________
Scott Mednick, Chairman and
Chief Executive Officer
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ANNEX A
Indemnification Provisions
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In connection with the engagement of Commonwealth Associates ("Consultant")
by THINK New Ideas, Inc. (the"Company") pursuant to that certain Agreement dated
as of November __, 1996, the Company hereby agrees as follows:
1. In connection with or arising out of or relating to the engagement of
Consultant under the Agreement, or any actions taken or omitted, services
performed or matters contemplated by or in connection with the Agreement, the
Company agrees to reimburse Consultant, its affiliates and their respective
directors, officers, employees, agents and controlling persons (each an
"Indemnified Party") promptly upon demand for expenses (including fees and
expenses of legal counsel) as they are incurred in connection with the
investigation of, preparation for or defense of any pending or threatened claim,
or any litigation, proceeding or other action in respect thereof. The Company
also agrees (in connection with the foregoing) to indemnify and hold harmless
each Indemnified Party from and against any and all losses, claims, damages and
liabilities, joint or several, to which any Indemnified Party may become
subject, including any amount paid in settlement of any litigation or other
action (commenced or threatened), to which the Company shall have consented in
writing (such consent not to be unreasonably withheld), whether or not any
Indemnified Party is a party and whether or not liability resulted; provided,
however, that the Company shall not be liable pursuant to this sentence in
respect of any loss, claim, damage or liability to the extent that a court
having competent jurisdiction shall have determined by final judgment (not
subject to further appeal) that such loss, claim, damage or liability resulted
primarily and directly from the willful misfeasance or gross negligence of such
Indemnified Party.
2. An Indemnified Party shall have the right to retain separate legal
counsel of its own choice to conduct the defense and all related matters in
connection with any such litigation, proceeding or other action. The Company
shall pay the fees and expenses of such legal counsel, and such legal counsel
shall to the fullest extent consistent with its professional responsibilities
cooperate with the Company and any legal counsel designated by the Company. The
Company agrees to consult in advance with Consultant with respect to the terms
of any proposed waiver, release or settlement of any claim, liability,
proceeding or other action against the Company to which an Indemnified Party may
also be subject, and to use its best efforts to afford Consultant and/or any
such Indemnified Party the opportunity to join in such waiver, release or
settlement.
3. In the event that the indemnity provided for in paragraphs 1 and 2
hereof is unavailable or insufficient to hold any Indemnified Party harmless,
then the Company shall contribute to amounts paid or payable by an Indemnified
Party in respect of such Indemnified Party's losses, claims, damages and
liabilities as to which the indemnity provided for in
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paragraphs 1 and 2 hereof is unavailable or insufficient (i) in such proportion
as appropriately reflects the relative benefits received by the Company, on the
one hand, and Consultant, on the other hand, in connection with the matters as
to which such losses, claims, damages or liabilities relate, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as appropriately reflects not only the relative benefits
referred to in clause (i) but also the relative fault of the Company, on the one
hand, and Consultant, on the other hand, as well as any other equitable
consideration. The amounts paid or payable by a party in respect of losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees and expenses incurred in defending any litigation,
proceeding or other action or claim. Notwithstanding the provisions hereof,
Consultant's share of the liability hereunder shall not be in excess of the
amount of fees actually received by Consultant under the Agreement (excluding
any amounts received as reimbursement of expenses incurred by Consultant).
4. It is understood and agreed that, in connection with Consultant's
engagement by the Company, Consultant may also be engaged to act for the Company
in one or more additional capacities, and that the terms of any such additional
engagement may be embodied in one or more separate written agreements. These
Indemnification Provisions shall apply to the engagement under the Agreement and
to any such additional engagement and any modification of such additional
engagement; provided, however, that in the event that the Company engages
Consultant to provide additional services (other than as indicated in the
Agreement), such further engagement may be subject to separate indemnification
and contribution provisions as may be mutually agreed upon.
5. These Indemnification Provisions shall remain in full force and effect
whether or not any of the transactions contemplated by the Agreement are
consummated and shall survive the expiration to the period of the Agreement, and
shall in addition to any liability that the Company might otherwise have to any
Indemnified Party under the Agreement or otherwise.
Very truly yours,
THINK NEW IDEAS, INC.
By:______________________________
Scott Mednick, Chairman and
Chief Executive Officer
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