AMENDED AND RESTATED ADVISORY AGREEMENT
THIS
AMENDED AND RESTATED ADVISORY AGREEMENT (this “
Agreement ”)
is made and entered into as of July 1, 2007, by and between
Greenwave Partners LLC, a Colorado limited liability company
(“
Greenwave ”),
and G8Wave, Inc., a Delaware corporation (the “
Company ,”
and together with Greenwave, collectively referred to as the
“
Parties ,
and each individually a “
Party ”).
BACKGROUND
A.
WHEREAS,
Greenwave and the Company entered into that certain Advisory
Agreement, dated March 30, 2007 (the “
Original Agreement ”),
pursuant to which the Company
contracted to receive, for itself and its subsidiaries,
transaction, financial and management advisory services from
Greenwave and thereby obtain the benefit of Greenwave’s
experience in financings, recapitalizations, mergers, acquisitions,
buyouts, industry consolidations, and business and financial
management generally and its knowledge of the Company’s
financial and business affairs in particular (the “
Services ”),
on the terms and conditions set forth therein.
B.
WHEREAS,
the Company is considering entering into a transaction
pursuant to which a publicly-traded
company ( “
PubCo ”
)
will acquire by merger (the “
Merger ”)
all of the issued and outstanding capital stock and the business of
the Company in exchange for the issuance by Pubco of shares of its
common stock to the Company’s stockholders.
As
a result of the Merger ,
t he
Company would be the surviving entity of the Merger and a
wholly-owned subsidiary of PubCo.
C.
WHEREAS,
pursuant to Section 10 of the Original Agreement, the Parties
desire to amend and restate the Original Agreement in its
entirety, as set forth herein, such that the Original
Agreement, as amended and restated herein, shall continue in
full force and effect.
NOW,
THEREFORE, in consideration of the premises, the respective
agreements hereinafter set forth and the mutual benefits to be
derived herefrom, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
TERMS
1.
ENGAGEMENT.
The
Company hereby engages Greenwave to provide the Services to
the Company and its subsidiaries during the Term (as defined
in
Section 4 ),
and Greenwave hereby agrees to provide the Services to the Company
during the Term, all on the terms and subject to the conditions set
forth below (the “
Engagement ”).
2.
SERVICES OF GREENWAVE.
(a)
Greenwave
hereby agrees to provide the Services to the Company during
the Term in accordance with applicable law and best practices
in the industry. The Services include, without limitation,
consultation with the Company’s board of directors (the
“
Board ”)
and management in such manner and on such business and financial
matters as may be reasonably requested from time to time by the
Board, including, but not limited to: (i) corporate, acquisition
and divestiture strategies; (ii) budgeting of future corporate
investments; (iii) public offerings; (iv) debt and equity
financings; (v) sourcing and identifying potential acquisition
candidates; (vi) establishing initial contact and negotiating
letters of intent with targets; (vii) formulating and negotiating
acquisition structures (e.g., stock/cash mix, earnouts,
compensation); (viii) financial modeling of target acquisitions;
(ix) oversight of lender approval process; (x) oversight of due
diligence process (including specialists e.g., environmental,
ERISA, insurance, tax); (xi) negotiating definitive acquisition
and/or financing agreements and ancillary documents; (xii)
coordination and oversight of closing process; (xiii) assisting
management in implementation of integration strategy and
post-closing matters (e.g., identifying potential cost savings,
plant closings, employee matters, lease negotiations, supply
agreements and other consolidation opportunities); (xiv) assisting
management in presentations to the investment community and
analysts of acquired companies and results of acquisition strategy,
(xv) and other related services requested by the Company and
reasonably acceptable to Greenwave.
(b)
Greenwave
will devote such time and attention to the performance of the
Services as are reasonably necessary. Any reference herein to
an approval or other action of the Board will mean a
determination based on a finding by a majority vote of the
members of the Board (excluding the votes of those directors
who are also principals of Greenwave) that the approval or
other action is in the best interest of the
Company.
3.
COMPENSATION.
(a)
The
Company hereby agrees to pay to Greenwave, as compensation for
Services to be rendered by Greenwave hereunder, a monthly fee
equal to $10,000 for each month in which Services are rendered
during the Term, and appropriately prorated for partial months
(the “
Fee ”);
provided ,
that (i) the Fee shall not begin to accrue until the Commencement
Date (as defined in
Section 4 ),
if any, and (ii) the Fee shall be payable no later than the tenth
day of the calendar month following the Commencement Date (the
“
First Payment Date ”).
On the First Payment Date, the Company shall pay to Greenwave all
amounts that have accrued pursuant to
Section 3(a)(i) ,
appropriately prorated for the partial month, and thereafter, the
monthly Fee shall be payable no later than ten (10) days after the
calendar month in which the Services were provided.
(b)
In
addition to the Fee, the Company hereby agrees that, promptly
after request from Greenwave from time to time, the Company
shall reimburse Greenwave for its out-of-pocket expenses
reasonably incurred by Greenwave during the Term in
furtherance of the performance of the Services;
provided ,
that the Company’s prior written consent shall be required
before Greenwave incurs any individual expense in excess of $500.
In order to obtain reimbursement of any expense, Greenwave shall
submit to the Company written documentation (e.g., receipts) of
such expense, along with any other supporting documentation
reasonable requested by the Company. All such documented expenses
shall be reimbursed on at least a monthly basis.
4.
TERM.
The
Engagement shall not commence unless and until both (i) the
Merger closes, and (ii) the Company receives equity financing
from unaffiliated third parties of at least $2.0 million (a
“
Minimum Financing ”)
after the date hereof and prior to the 6
th month
anniversary of the date hereof (the later of the date the Merger
closes and the date the Company receives the Minimum Financing
being the “
Commencement Date ”).
If the Merger closes and the Company receives such Minimum
Financing within such 6
th month
period, the Engagement will be in effect for an initial term of one
(1) year (the “
Initial Term ”),
commencing on the Commencement Date and expiring on the one (1)
year anniversary thereof. If the Merger does not close or the
Company does not receive the Minimum Financing within such 6
th month
period, the Agreement shall terminate and no longer have any force
or effect. The Engagement will be renewed automatically thereafter
on a year-to-year basis unless one party gives the other thirty
(30) days’ prior written notice of its desire not to renew
this Agreement. The Initial Term, as renewed in accordance with the
terms of this Agreement, is referred to herein from time to time as
the “
Term .”
5.
TERMINATION; SURVIVAL.
(a)
The
Engagement may be terminated prior to the expiration of the
Term (i) by the mutual written consent of the parties, (ii) by
either party, if the other party materially breaches the terms
of this Agreement and does not cure such breach within thirty
(30)
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