Terms and Conditions – Plus Buyer Service
Last Modified: January 12, 2024
Welcome to the terms and conditions for the Plus Buyer Service (these “Terms”). These Terms are between you, individually and on behalf of any Person (as hereinafter defined) that employs you and/or that you represent in connection with the Services (as hereinafter defined) (individually and collectively, the “Client”), and ENTERPRISE FINANCIAL PARTNERS, LLC, a Missouri limited liability company sometimes doing business as AdviserXchange (the “Consultant” or “AX”), and govern our respective rights and obligations with respect to the Services.
Additional Terms. Client’s use of the adviserxchange.com website (the “Website”) and/or Services are also governed by and subject to the Website’s Terms of Use, Privacy Policy, and other applicable terms, conditions, limitations, and requirements on the Website (collectively, and together with the Terms of Use and Privacy Policy, the “Additional Terms”), all of which (as updated and modified over time and from time to time) are incorporated into these Terms and apply to Client.
Acceptance of Terms. Please read these Terms carefully. By purchasing the Service (as hereinafter defined), upgrading Client’s Marketplace (as hereinafter defined) account, or entering into or otherwise agreeing to these Terms, Client accepts and agrees to be subject to and bound by these Terms and the Additional Terms (including, but not limited to, Client’s payment, indemnification, and other obligations in favor of Consultant and its Representatives (as hereinafter defined) ), and further agrees to fully adhere to and abide by these Terms and the Additional Terms in all respects; provided, however, that in the event of any conflict between these Terms and the Additional Terms, these Terms will govern and control.
1. Term; Cancellation of Service. These Terms are effective from the earlier of: (a) the date Client purchased the Service, (b) the date Client upgraded Client’s Marketplace account, or (c) the date Client entered into or otherwise agreed to these Terms (the “Effective Date”) through the one (1) year anniversary date of the Effective Date (such one year period, the “Initial Term”), and will automatically renew for additional one (1) year periods (i.e., each subsequent anniversary date of the Effective Date) (each, a “Renewal Period”, and together with the Initial Term, the “Term”), unless earlier terminated in accordance with these Terms or Client gives written notice of termination to Consultant prior to the expiration of the Initial Term or any Renewal Period. A termination initiated by Client will be in the form and manner as specified on the Website (or by Consultant if such information is not available on the Website) and effective as of the last day of the then-current Service Period (as hereinafter defined). Client acknowledges and agrees that, except for providing the Services pursuant to Section 2 of these Terms and as otherwise provided herein, all other provisions of these Terms will survive the expiration or earlier termination of these Terms for any reason.
2. Services. During the Term and subject to these Terms, Consultant will provide Client with access to all the available features of Consultant’s internet-based business marketplace that operates on the Website (the “Marketplace”) and displays information about investment and financial advisory businesses whose owners and principals are or may be seeking to sell, merge, affiliate, and/or otherwise identify a successor for their respective advisory businesses (each such owner and principal, a “Candidate” and collectively, the “Candidates”) (the “Service”). Consultant, in its sole discretion, may also from time to time provide such other services, and perform such other activities, for the direct or indirect benefit of Client, including, without limitation, assistance in identifying and facilitating introductions to potential Candidates for mergers, acquisitions, affiliations, strategic alliances, divestitures, spinoffs, and other transactions and/or recruiting and succession planning purposes (collectively with the Service, the “Services”) .
Client acknowledges and agrees that, for the purposes of these Terms, the terms “Candidate” and “Candidates” also includes (i) all past, present, and future parents, subsidiaries, affiliates, and other affiliated Persons, including, without limitation, all past, present, and future affiliated brokers, advisors, financial planners, consultants, CPAs, accountants, tax preparers, and other professionals (collectively, the “Affiliated Persons”) of each Candidate; (ii) all past, present, and future quasi, informal, strategic, situational, opportunistic, and office-sharing partners (collectively, the “Informal Partners”) of each Candidate; and (iii) for the purposes of clarification, any other Person that is, becomes, or is deemed by Consultant, in its sole discretion, to be a Candidate as a result of the services or activities of Consultant or any Cooperating Person (as hereinafter defined) pursuant to Section 4 below.
3. [Intentionally Omitted]
4. Fees. Client, jointly and severally, agrees to pay the following fees to Consultant (or its designee) for the services provided hereunder:
(a) Annual Fee. Client will pay to Consultant, in addition to all other amounts that are or become due and payable hereunder, an annual upgrade fee of $499.00 (the “Annual Fee”). The Annual Fee is due and payable upon the purchase of the Service and on the first (1st) day of each Renewal Period during the Term of these Terms. Amounts paid pursuant to this Section 4(a) are fully earned by Consultant upon receipt, will be credited toward any fees hereafter payable pursuant to Section 4(b), and are non-refundable. Notwithstanding anything herein to the contrary, Client will, unless otherwise directed in writing by Consultant, pay the Annual Fee to Consultant through Consultant’s designated merchant or electronic payment processing account.
(b) Transaction Fee. If at any time before, during, or after the Term, any Transaction (as hereinafter defined) is consummated (or an agreement is entered into which subsequently results in a consummated Transaction): (i) with any Candidate referred to, introduced to, or brought to the attention of Client by Consultant or any Cooperating Person, whether before, during, or after the Term of these Terms; (ii) with any Candidate that Client became aware of, or that became aware of Client, as a direct or indirect result of the services or other activities of Consultant or any Cooperating Person regardless of whether Consultant’s or such Cooperating Person’s services or other activities occurred before, during, or after the Term of these Terms; (iii) with any Candidate that Consultant or any Cooperating Person has, at any time, whether before, during, or after the Term of these Terms, directly or indirectly, interacted, corresponded, or otherwise communicated with on behalf or for the benefit of Client; (iv) in which Consultant or any Cooperating Person has, at any time, whether before, during, or after the Term of these Terms, directly or indirectly, provided guidance, assistance, or other services to Client in connection therewith; (v) with any Candidate as a result of any breach by Client of any provision set forth in Section 8 of these Terms; (vi) with any Candidate that Client became aware of, or that became aware of Client, as a direct or indirect result of any information or content contained in or on Consultant’s websites, social media sites (including, without limitation, facebook, LinkedIn, and Twitter), or other internet-based sites regardless of whether such awareness occurred before, during, or after the Term of these Terms; or (vii) with any Candidate that Client became aware of as a direct or indirect result of any online messaging or other communications service, posting, and/or listing offered by or on behalf of Consultant to clients and Candidates on or through Consultant’s websites regardless of whether such awareness occurred before, during, or after the Term of these Terms, then, in each case, Client will immediately have an obligation to pay, and will pay or cause to be paid to, Consultant a transaction fee equal to the greater of (x) the sum of (A) ten percent (10%) of the first $1,000,000.00 in Consideration (as hereinafter defined), plus (B) nine percent (9%) of the next $500,000.00 in Consideration, plus (C) eight percent (8%) of the next $500,000.00 in Consideration, plus (D) seven percent (7%) of all Consideration thereafter (in each case as applicable), or (y) $30,000.00 (such greater amount, the “Transaction Fee”). Client hereby covenants and agrees to notify Consultant in writing at least ten (10) days prior to the expected consummation date of each such Transaction. At the sole discretion of Consultant, Client will utilize the services of a closing agent designated by Consultant.
(c) Succession Plan Fee. If at any time before, during, or after the Term, any Client, Client Affiliate (as hereinafter defined) or Benefiting Party (as hereinafter defined) enters into (whether express or implied, and (if it is express) whether oral or in writing) any Succession Agreement (as hereinafter defined): (i) with any Candidate referred to, introduced to, or brought to the attention of Client by Consultant or any Cooperating Person, whether before, during, or after the Term of these Terms; (ii) with any Candidate that Client became aware of, or became aware of Client, as a direct or indirect result of the services or other activities of Consultant or any Cooperating Person regardless of whether Consultant’s or such Cooperating Person’s services or other activities occurred before, during, or after the Term of these Terms; (iii) with any Candidate that Consultant or any Cooperating Person has, at any time, whether before, during, or after the Term of these Terms, directly or indirectly, interacted, corresponded, or otherwise communicated with on behalf of Client; (iv) in which Consultant or any Cooperating Person has, at any time, whether before, during, or after the Term of these Terms, directly or indirectly, provided guidance, assistance, or other services to Client in connection therewith; (v) with any Candidate as a result of any breach by Client of any provision set forth in Section 8 of these Terms; (vi) with any Candidate that Client became aware of, or that became aware of Client, as a direct or indirect result of any information contained in or on Consultant’s websites, social media sites (including, without limitation, facebook, LinkedIn, and Twitter), or other internet sites regardless of whether such awareness occurred before, during, or after the Term of these Terms; or (vii) with any Candidate that Client became aware of as a direct or indirect result of any online messaging or other communications service, posting, and/or listing offered by or on behalf of Consultant to clients and Candidates on or through Consultant’s websites regardless of whether such awareness occurred before, during, or after the Term of these Terms, then, in each case, Client will immediately have an obligation to pay, and will pay or cause to be paid to, Consultant a succession plan fee equal to $10,000.00 (or, if deemed a Joint Venture (as hereinafter defined) by Consultant in its sole discretion, a succession plan fee equal to $15,000.00) (the “Succession Plan Fee”). Notwithstanding the foregoing or anything herein to the contrary, if, after entering into a Succession Agreement with any Candidate, any Transaction is subsequently consummated with such Candidate at any time thereafter, Client will immediately pay to Consultant a transaction fee equal to the sum of (x) the Transaction Fee (or, as applicable, the Joint Venture Fee (as hereinafter defined)) with respect to such Transaction as provided for in Section 4(b) above minus (y) the Succession Plan Fee actually paid with respect to such Succession Agreement. Client hereby covenants and agrees to notify Consultant in writing at least ten (10) days prior to the entering into of each such Succession Agreement and the expected consummation date of each subsequent Transaction.
(d) Affiliation Fee. Notwithstanding the foregoing or anything herein to the contrary, if at any time before, during, or after the Term, any Client, Client Affiliate or Benefiting Party enters into (whether express or implied, and (if it is express) whether oral or in writing) any Affiliation Arrangement (as hereinafter defined): (i) with any Candidate referred to, introduced to, or brought to the attention of Client by Consultant or any Cooperating Person, whether before, during, or after the Term of these Terms; (ii) with any Candidate that Client became aware of, or became aware of Client, as a direct or indirect result of the services or other activities of Consultant or any Cooperating Person regardless of whether Consultant’s or such Cooperating Person’s services or other activities occurred before, during, or after the Term of these Terms; (iii) with any Candidate that Consultant or any Cooperating Person has, at any time, whether before, during, or after the Term of these Terms, directly or indirectly, interacted, corresponded, or otherwise communicated with on behalf of Client; (iv) in which Consultant or any Cooperating Person has, at any time, whether before, during, or after the Term of these Terms, directly or indirectly, provided guidance, assistance, or other services to Client in connection therewith; (v) with any Candidate as a result of any breach by Client of any provision set forth in Section 8 of these Terms; (vi) with any Candidate that Client became aware of, or that became aware of Client, as a direct or indirect result of any information contained in or on Consultant’s websites, social media sites (including, without limitation, facebook, LinkedIn, and Twitter), or other internet sites regardless of whether such awareness occurred before, during, or after the Term of these Terms; or (vii) with any Candidate that Client became aware of as a direct or indirect result of any online messaging or other communications service, posting, and/or listing offered by or on behalf of Consultant to clients and Candidates on or through Consultant’s websites regardless of whether such awareness occurred before, during, or after the Term of these Terms, then, in each case, Client will immediately have an obligation to pay, and will pay or cause to be paid to, Consultant an affiliation fee equal to the greater of (x) ten percent (10%) of such Candidate’s trailing twelve (12) months Gross Revenue (as hereinafter defined) or (y) $30,000.00 (such greater amount, the “Affiliation Fee”). Notwithstanding the foregoing or anything herein to the contrary, if, after entering into an Affiliation Arrangement with any Candidate, any Transaction is subsequently consummated with such Candidate at any time thereafter, Client will immediately pay to Consultant a transaction fee equal to the sum of (A) the Transaction Fee with respect to such Transaction as provided for in Section 4(b) above minus (B) the Affiliation Fee actually paid with respect to such Affiliation Arrangement. Client hereby covenants and agrees to notify Consultant in writing at least ten (10) days prior to the entering into of each such Affiliation Arrangement and the expected consummation date of each subsequent Transaction.
(e) Joint Venture Fee. Notwithstanding the foregoing or anything herein to the contrary, if at any time before, during, or after the Term, any Transaction is consummated (or an agreement is entered into which subsequently results in a consummated Transaction) with any Candidate in which Client, directly or indirectly, consummates such Transaction in partnership with (in whatever form) any non-client Representative of Client or any other authorized or approved Person not a party to these Terms (each, a “Joint Venture”), then, in each case, Client will immediately have an obligation to pay, and will pay or cause to be paid to, Consultant a joint venture fee equal to the greater of (i) fifteen percent (15%) of all Consideration or (ii) $35,000.00 (such greater amount, the “Joint Venture Fee”) in lieu of a Transaction Fee. Client hereby agrees to notify Consultant in writing at least ten (10) days prior to the expected consummation date of each such Transaction.
(f) Financing Fee. If at any time before, during, or after the Term, Client or any Client Affiliate (a) receives or accepts a commitment for any loan, funding, or other financing of any kind or type (each, a “Loan” and collectively, the “Loans”) from any bank, commercial lender, or other financing source of any kind or type (each, together with their respective subsidiaries, affiliates, correspondents, and other affiliated Persons, a “Lender” and collectively, the “Lenders”) to whom Consultant or any Cooperating Person submitted any Client or Client Affiliate Loan need or request, (b) receives or accepts a commitment for any Loan from any Lender referred to, introduced to, or otherwise brought to the attention of Client or any Client Affiliate by Consultant or any Cooperating Person, (c) receives or accepts a commitment for any Loan from any Lender that Client or any Client Affiliate became aware of, or that became aware of Client or any Client Affiliate, as a direct or indirect result of the services or other activities of Consultant or any Cooperating Person, (d) receives or accepts a commitment for any Loan in which Consultant provided guidance, assistance, or any other service to Client or any Client Affiliate in connection therewith, or (e) renegotiates any term or provision of any Loan in which Consultant provided guidance, assistance, or any other service to Client or any Client Affiliate in connection therewith, then, in each case, Client will immediately have an obligation to pay and will immediately pay, or cause to be paid, to Consultant a financing fee equal to the greater of (i) two percent (2%) of the face amount of the Loan made or committed to be made by such Lender (in each case as applicable) or (ii) $5,000.00 (such greater amount, the “Financing Fee” and collectively, the “Financing Fees”). Client acknowledges and agrees that higher percentage and minimum Financing Fees and/or additional fees and retainers (collectively, the “Additional Fees”) may also from time to time be required by Consultant for any Loan or related consulting services and/or activities requested by Client that, in the sole discretion of Consultant, exceed the scope of the Services contemplated herein (collectively, the “Supplemental Services”). In such instances, the Supplemental Services will be documented separately by the parties, and any Additional Fees will be due and payable on demand or as otherwise specified by Consultant. All fees and retainers (including, without limitation, the Additional Fees) are non-refundable. Client further acknowledges and agrees that Consultant may also: (A) receive additional compensation from the Lenders based on the Loan program(s) and terms Client accepts; (B) participate in other Loan transactions with the Lenders and receive a fee or other compensation from the Lenders in regard to such Loan transactions; and (C) pay unrelated parties a fee or other compensation in connection with any Loan transaction contemplated herein. Client hereby covenants and agrees to notify Consultant in writing immediately upon closing or accepting a commitment for any Loan. Client also covenants and agrees to provide Consultant with copies of all executed Loan documents (including, without limitation, any accepted Loan commitments) immediately after the execution of such Loan documents.
(g) Other Fees. Client will pay to Consultant such other fees for other services as Client and Consultant agree in writing.
(h) Fees Non-Refundable. All fees and other amounts payable to Consultant under these Terms are non-refundable except as otherwise specified.
(i) Payment of Fees. All amounts payable under these Terms will be paid by wire transfer or in other immediately available funds on or before the date it is due, without set-off or counterclaim, and without deduction for any withholding, value-added, or similar taxes, charges, fees, or assessments. In the event Consultant does not receive any fee when due, Client hereby authorizes and directs Consultant to charge such fee to any credit card, debit card, or any other method of payment of Client on file with Consultant (to the extent applicable). In the event of non-payment of any amount due and payable hereunder, Consultant reserves the right, in its sole discretion at any time thereafter, to either immediately suspend the performance of the Services until payment is brought current, together with any late fee or interest on such delinquent payment(s), or terminate these Terms. The suspension of the performance of any Services or the termination of these Terms as a result of the foregoing will not relieve Client from any amounts due or committed to be paid hereunder.
5. Late Charges and Interest; Collection Expenses. In the event that, for any reason, Client fails to pay, or cause to be paid on its behalf, any amounts payable to Consultant pursuant to these Terms within five (5) days immediately following the date on which such payment is due and payable (regardless of whether or not an invoice is received by Client for such amount), Client agrees to pay, will be obligated to pay, and will in fact pay to Consultant, in addition to all other amounts due hereunder:
(a) a late charge equal to the lesser of: (i) the greater of (A) ten percent (10%) of such unpaid amount or (B) $2,500.00; or (ii) the highest late charge permitted by the laws of the State of Alabama or such other applicable law; and
(b) interest on the unpaid balance due hereunder from the date such amount was due through and including the date such balance is actually received by Consultant at the rate which is the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate permitted by the laws of the State of Alabama or such other applicable law, in any case, computed on a daily basis.
Notwithstanding anything herein to the contrary, Client will also pay to or reimburse Consultant for all attorneys’ fees, costs, and expenses incurred by Consultant, and all other fees, costs, and expenses paid or incurred by Consultant or its counsel (including, without limitation, all court and/or arbitration fees, costs, and expenses, and all discovery and investigative costs, expert witness fees, and other fees, costs, and expenses (e.g., without limitation, transportation, lodging, and meal expenses) incurred in connection with such activities, and the administrative costs of the court and/or arbitration proceeding(s), including payment of the arbitrator) in connection with the non-payment, late payment, and/or collection of the fees and other obligations due, payable, or past due to Consultant, incurred or accrued by Consultant, or otherwise owed by Client or on Client’s behalf in connection with these Terms, in each case, regardless of whether such fees and other obligations are disputed or undisputed and without set off of any kind.
6. Client Information. Client, in each case as applicable or appropriate, (a) will furnish, or cause to be furnished, to Consultant all information reasonably requested by Consultant for the purpose of rendering the Services hereunder (the “Information”), (b) hereby authorizes and directs Consultant to furnish any and all Information about Client and Client’s business and affairs, owners, and management as may now or hereafter be in the possession of Consultant to any Candidate or Cooperating Person working with Consultant for the benefit of Client for the purpose of facilitating introductions and discussions between Client and each such Candidate, (c) will complete, execute, and deliver to Consultant all forms, authorizations, and other documentation that may be reasonably requested by Consultant in connection with these Terms, or any Transaction (whether proposed or consummated) or Succession Agreement, (d) hereby authorizes Consultant to obtain from time to time any other information or reports on Client and their respective principals, including, without limitation, personal credit reports for purposes of Consultant extending credit hereunder, and (e) will promptly notify Consultant in writing of any changes to such Information (including, for example but without limitation, contact, business, and/or any material changes to Client’s firm and/or practice Information). Client represents and warrants that the Information will be true and correct in all material respects and will not contain any material misstatement of a fact or omit to state any material fact necessary to make the statements contained therein not misleading. Client will promptly notify Consultant if it learns of any material inaccuracy or misstatement in, or material omission from, any Information delivered to Consultant. Client recognizes and confirms that Consultant (i) will use and rely on the accuracy and completeness of the Information supplied or otherwise made available to Consultant without having any obligation to independently verify the authenticity, accuracy, or completeness of such Information, (ii) does not assume responsibility for the accuracy or completeness of the Information and will not have any liability to Client or any third party if such Information is inaccurate or incomplete, and (iii) will not have any duty to undertake, and will not undertake, an independent evaluation, appraisal, audit, review, or physical inspection of the operations, assets, liabilities, or other business activities of any Client or Candidate with which Client may effect a Transaction or enter into any other business or personal arrangement.
7. Client Acknowledgements and Agreements. Client acknowledges and agrees that Consultant has made no representations, warranties, assurances, or guarantees, express or implied, that a Transaction or any other business transaction or arrangement will be consummated or otherwise entered into as a result of the Services provided under these Terms. Client further acknowledges and agrees that: (a) Consultant has been retained solely to provide the Services set forth in these Terms; (b) all decisions as to whether to initiate or engage in discussions, negotiations, and communications with, or the submissions of bids, proposals, offers, indications of interest, letters of intent, term sheets, summary of terms, memoranda of understanding, and equivalents to, any Candidate with respect to a potential Transaction , Succession Agreement, or Affiliation Arrangement are the exclusive responsibility of Client, including the approval of all terms and conditions of such Transaction, Succession Agreement, or Affiliation Arrangement; (c) Client will at all times keep Consultant fully informed of all strategies, developments, discussions, and other matters with respect to any potential Transaction, Succession Agreement, Affiliation Arrangement, or other matter relating to these Terms, and no initiatives or material actions relevant to a Transaction , Succession Agreement, Affiliation Arrangement, or other matter relating to these Terms will be taken by Client without prior consultation with Consultant; (d) each of the Candidates will, in their sole discretion, determine their willingness to engage in discussions, negotiations, or otherwise communicate with, and/or engage in a Transaction, or enter into a Succession Agreement or Affiliation Arrangement, with, Client; (e) Consultant will have no liability or responsibility for or with respect to any acts or omissions of any of the Candidates, Cooperating Persons, or any other third parties, each/all of whom will be liable and responsible for their own acts and omissions; (f) Client will immediately provide, or cause Client’s agents to provide, Consultant with (1) all material information and terms regarding (and, if in written or electronic form, full and complete copies of) all bids, proposals, offers, indications of interest, letters of intent, term sheets, summary of terms, memoranda of understanding, and equivalents pertaining to any potential Transaction, Succession Agreement, or Affiliation Arrangement, and (2) any and all Transaction, Succession Agreement, and Affiliation Arrangement documents as such documents are generated, including, without limitation, drafts of all purchase and sale documents and any other closing documents (all such documents being the sole responsibility of Client and/or Candidates); (g) it is Client’s sole responsibility for any due diligence matters and the transition of the business and other assets associated with any such Candidate’s firm or practice to Client and, as applicable (i.e., whenever all of the client accounts to be acquired are not on the same investment platform(s) as Client), Client’s broker-dealer, registered investment advisor, designated custodian(s), and/or other relevant/applicable platform(s) after the consummation of a Transaction or other firm/practice transition; (h) all Services hereunder will be performed by Consultant at its principal place of business or such other locations as determined by Consultant in its sole and absolute discretion; (i) Consultant will act as an independent contractor, and any duties of Consultant arising out of the services hereunder will be owed solely to Client; (j) the duties of Consultant will not include any legal, tax, or accounting services or advice, which will be procured by Client at Client’s own expense; (k) the services to be performed hereunder will not include any activity for which Consultant would be required to be licensed as a real estate broker or broker-dealer; (l) Consultant is not being retained to provide or render any formal opinion to Client or its equityholders on the appropriateness or fairness of any Transaction, Succession Agreement, or Affiliation Arrangement; (m) except to the extent specifically and unambiguously set forth herein, Consultant’s engagement hereunder is non-exclusive; (n) the Services provided hereunder constitute transacting business in interstate commerce; (o) each obligation described herein of Client is a joint and several obligation of Client and any Principal (as such term is defined in the Terms of Use) of such Client; (p) Consultant may, at its option and expense, publicize Consultant’s role in, or any other information relating to, any completed Transaction, Succession Agreement, or Affiliation Arrangement;(q) nothing in these Terms will preclude Consultant from entering into any type of fee, consulting, advisory, or other agreement directly with any Candidate or other Person previously identified, whether directly or indirectly, by Consultant or any Cooperating Person pursuant to these Terms and brought to the attention of Client or as otherwise provided herein, or providing any similar services to any such Candidate or Person; (r) any and all conversations with Consultant and its Representatives (whether in person or through cellular phone lines, traditional telephonic lines, internet based phone systems, or any other electronic means of communication (e.g., without limitation, Skype and similar communication vehicles)) may be recorded by Consultant for quality assurance, training, or any other purposes and Client hereby absolutely, irrevocably, and unconditionally consents to the recording of any and all such conversations; and (s) in no event will Consultant be liable for any loss of use, data, goodwill, revenues, or profits (whether or not deemed to constitute direct claims) or any consequential, special, indirect, incidental, punitive, or exemplary loss, damage, or expense (including, without limitation, lost profits and opportunity costs) (collectively, the “Other Damages”) arising out of or relating to these Terms or the performance of the Services, regardless of whether the claim giving rise to such damages is based upon breach of contract, negligence, or otherwise.
8. Non-Circumvention. Client irrevocably agrees and covenants that Client will not, directly or indirectly, or in conjunction with any non-client broker-dealer (“BD”), registered investment adviser (“RIA”), financial planning firm, investment company, hedge fund, or similar entity, or any other Person, (a) circumvent, avoid, bypass, or obviate the terms and conditions or intent of these Terms in any manner whatsoever, or (b) deprive, or attempt to deprive, Consultant of all or any portion of any fees or other compensation to which Consultant may be entitled in connection with any Transaction, Succession Agreement, other service, or otherwise (including, without limitation, any situation or circumstance where (i) Client has not paid its obligations pursuant to the terms of these Terms, (ii) Client is otherwise non-responsive to Consultant’s demand for payment, and/or (iii) Consultant initiates any form of collection activity or incurs any expense related thereto), and, in each such case described in (a) or (b) of this Section 8, Client acknowledges, agrees, and stipulates, both as of the Effective Date and at the time thereof, that Client will be liable to and have the duty to pay to Consultant the full amount of all applicable fees identified in Section 4 of these Terms and any other compensation or obligations with respect to any such activity(ies) described in this Section 8 or that would otherwise be payable if such activity(ies) had not occurred.
9. [Intentionally Omitted]
10. Relationship of the Parties. The relationship of each party is that of contracting parties who are, and will at all times be, solely independent contractors. Neither party nor its representatives is, nor will such party or its representatives be construed to be, by any party to these Terms or by any third party, an employee, joint venturer, partner, principal, agent, master, servant, fiduciary, or other representative of the other party other than that independent contractor. Neither party is authorized to assume or create any obligations, duties, or liabilities, express or implied, on behalf of or in the name of the other party, except as otherwise expressly permitted by or provided to the contrary in these Terms. Furthermore, Client acknowledges, agrees, and understands that Consultant, on the one hand, and any Candidate, on the other hand, are unaffiliated entities and independent parties.
11. [Intentionally Omitted]
12. [Intentionally Omitted]
13. Governing Law; Exclusive Jurisdiction. These Terms will be governed by and interpreted and construed in accordance with the laws of the State of Alabama without reference to or giving effect or application to any conflict of laws principles that may permit or require the application of the laws of another State or jurisdiction. Although Client acknowledges and agrees that Consultant will have the ability to enforce its rights in any court of competent jurisdiction, Client hereby consents to the exclusive jurisdiction and venue of state and federal courts situated in Calhoun County, Alabama, U.S.A. (or such other county in which Consultant’s principal place of business may be located as applicable) (collectively, the “Alabama Courts”), regarding any and all Disputes (as hereinafter defined). Each party, for itself and its affiliates and their respective Representatives, irrevocably consents and submits to the exclusive jurisdiction of the Alabama Courts with such courts being the exclusive venue for any Disputes. Each party further covenants not to sue the other party (or such other party’s representatives) or seek relief with respect to these Terms in any court or jurisdiction other than the Alabama Courts.
14. Waiver of Jury Trial; Arbitration. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION, CAUSE OF ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR DISPUTE DIRECTLY OR INDIRECTLY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS (EACH, A “DISPUTE”). At Consultant’s sole discretion, Consultant may require the parties to submit any Dispute, including, without limitation, any Dispute arising from or concerning the interpretation, violation, invalidity, non-performance, or termination of these Terms, to final and binding arbitration under the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) (without being submitted to the AAA) as in effect at the time of submission of such Dispute applying the governing law provided for in Section 13 above; provided, however, that (a) only a single arbitrator will be appointed and said single arbitrator will constitute the entire arbitration panel, (b) if the parties are unable to agree on a single arbitrator within fourteen (14) calendar days after the initiation of an arbitration proceeding, then each party will select its choice as an arbitrator, and the two (2) selected arbitrators will choose the arbitrator to hear the Dispute, (c) the arbitrator will be required to render a reasoned award stating with particularity the grounds for his or her decision, (d) any such arbitration will take place in the same city and state where Consultant is located at the time of the arbitration, and (e) in the event of any conflict between the Rules and the provisions of this Section, the provisions of this Section will prevail. The decision in writing of the arbitrator will be final and binding upon the parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In no event will (i) either party be liable to the other for any Other Damages of the other for any reason whatsoever, whether any claim for such recovery is based upon theories of contract, negligence, or tort (including strict liability) or (ii) the arbitrator or court, as the case may be, have the authority to award such Other Damages. Further, the arbitrator and court, as the case may be, will not have any power to alter, amend, modify, or change any of the terms of these Terms. All such actions and proceedings regarding equitable or injunctive relief or to enforce or contest an arbitral award will be subject to the exclusive jurisdiction of the courts set forth in Section 13 above. Each party further covenants not to sue the other party (or such other party’s representatives) or seek relief with respect to these Terms in any court or jurisdiction other than as provided for in Section 13 above. Except as otherwise provided herein (e.g., without limitation, the Late Charges and Interest; Collection Expenses, Indemnification and Compensation for Legal Matters sections in these Terms), if an arbitration or other legal proceeding is instituted to enforce a party’s rights hereunder, each party will be responsible for: (A) the payment of its own fees and expenses incurred by such party in preparing for and in trying the proceeding before the arbitrator or court, including, without limitation, investigative costs, expert witness fees, and attorneys’ fees; and (B) one-half of the administrative costs of any such arbitration proceeding, including payment of the arbitrator.
15. Defined Terms; Rules of Construction. Capitalized terms used in these Terms will have the meanings given to them in these Terms unless reference to a defined term expressly relates to another agreement referenced herein. Further, unless the context otherwise clearly requires: (a) the definitions of the terms herein will apply equally to the singular and plural forms of the terms defined; (b) whenever the context may require, any pronoun will include the corresponding masculine, feminine, and neuter forms; (c) the words “include”, “includes”, and “including” will be deemed to be followed by the phrase “without limitation”; (d) [Intentionally Omitted]; (e) any definition of or reference to any agreement, instrument, or other document herein will be construed as referring to such agreement, instrument, or other document as from time to time amended, supplemented, or otherwise modified (subject to any restrictions on such amendments, supplements, or modifications set forth herein); (f) any reference herein to any Person will be construed to include such Person’s heirs, executors, legal representatives, successors, and assigns; (g) the words “herein”, “hereof”, and “hereunder”, and words of similar import, will be construed to refer to these Terms in its entirety and not to any particular provision hereof; and (h) all references herein to Sections, exhibits, and schedules will be construed to refer to Sections of, and exhibits and schedules to, these Terms.
16. Compensation for Legal Matters. Notwithstanding anything herein to the contrary, if, at any time, Consultant or its affiliates and any of their respective Representatives are compelled to testify or otherwise appear in any Dispute or other matter (whether relating to the Services, these Terms, or otherwise (e.g., without limitation, any frivolous or vexatious matters)) by subpoena, court order, investigative demand, other judicial or arbitral process, or otherwise, then Client will, in addition to all other amounts due hereunder, immediately pay to Consultant (a) a non-refundable retainer in the amount of $10,000.00 as compensation for each such Representative’s availability and lost opportunities and (b) an hourly fee of $250.00 (as from time to time adjusted) for all time expended for such Dispute or other matter (including, without limitation, any travel and down time) and all reasonable fees, costs, and expenses incurred in connection therewith (including, without limitation, transportation, lodging, and meal expenses) by each such Representative. In addition, Client further acknowledges that Consultant reserves any and all other legal, equitable, or other remedies that Consultant may have at law, in equity, or otherwise, and that the foregoing does not constitute an election of remedies or waiver of any such other remedies available to Consultant.
17. Force Majeure. Consultant will not be liable or responsible to Client, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by or results from acts beyond Consultant’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats, or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the Effective Date; (f) action by any governmental authority; and (g) national or regional emergency (each, a “Force Majeure Event”). Consultant will give notice within (10) days of any Force Majeure Event to Client, stating the period of time the occurrence is expected to continue or prevent performance by Consultant.
18. Notices. The parties agree that any notice, consent, approval, change in contact or other written communication to be provided pursuant to these Terms and/or applicable laws must be in writing and delivered to the applicable party in person or at its/their mailing address, facsimile number, or email address provided when entering into and agreeing to these Terms, or at such other address, facsimile number, or email as any party hereto may designate as its address, facsimile number, or email for communications under these Terms by notice so given in accordance with this Section 18. Such notices will be deemed effective on the day on which delivered if delivered in person, on the day on which sent if sent by facsimile or email, on the first (1st) business day after the day on which sent, if sent by recognized overnight courier, and on the third (3rd) business day after the day on which mailed.
19. Entire Agreement. These Terms, together with any Exhibits, Schedules, and Addendums hereto, represents the entire agreement and understanding between the parties and supersedes all prior agreements and understandings (oral or written) relating to the subject matter hereof. Each party hereby expressly waives any and all claims or defenses to enforcement of these Terms which are based on any statement, understanding, or agreement not fully stated herein.
20. No Third-Party Beneficiaries Except as set forth in sub-section (c) of the last paragraph of Section 28 (Confidentiality), these Terms are solely for the benefit of the parties hereto and no other party, including, without limitation, any equity holder or creditor of any Client, will be deemed a third-party beneficiary of these Terms or have any rights with respect to these Terms or its subject matter.
21. Modification and Waiver. These Terms cannot be modified unless agreed to in writing and signed by all parties; provided, however that Consultant may modify or change any provision of these Terms at any time in its sole discretion to be effective on the first day of the following Renewal Period. No failure or delay on the part of Consultant in exercising any right, power, or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The rights and remedies provided for herein are cumulative and are not exclusive of any rights and remedies that may be available to Consultant at law, in equity, or otherwise.
22. Binding Effect; Assignment. These Terms are binding upon and inures to the benefit of the parties hereto and their respective heirs, executors, legal representatives, successors, and assigns, except that Client may not assign or otherwise transfer any of its rights or delegate any of its obligations under these Terms without the prior written consent of Consultant. Consultant and its assigns may assign (without recourse) any and all of its rights, duties, and obligations under these Terms to any affiliate of Consultant, any third party pursuant to any sale or transfer of substantially all the assets or business of Consultant, or any other party in its sole discretion.
23. Headings; Severability. The headings used in these Terms are for convenience only and are not to be construed as affecting the interpretation of the wording of the sections or paragraphs or of these Terms. In the event that any part or portion of these Terms is held invalid, unlawful, or otherwise unenforceable through any administrative, quasi-judicial, or judicial proceeding, the invalidity, illegality, or unenforceability thereof will not affect the validity, legality, or enforceability of these Terms as a whole, and the other provisions and terms contained herein will remain in full force and effect as if the invalid, illegal, or unenforceable provision(s) had been eliminated.
24. [Intentionally Omitted]
25. Accredited Investor. Client hereby certifies to Consultant that each Client is an accredited investor in accordance with 15 U.S.C. s. 77b, the Securities Act of 1933, or any regulation adopted thereunder.
26. Waiver of Statute of Limitation. Each Client hereby expressly waives and releases, to the fullest extent permitted by applicable law, the pleading of any statute of limitation as a defense to the enforceability of these Terms or performance of any of Client’s obligations under the provisions of these Terms.
27. Indemnification. Client, jointly and severally, agrees to hold harmless and indemnify Consultant and its parent, affiliates, and subsidiaries, and any Cooperating Persons and the respective Representatives of Consultant and its parent, affiliates, and subsidiaries and/or any Cooperating Persons (collectively, the “Indemnified Parties”) from and against any and all claims, demands, losses, damages, costs, expenses (including, without limitation, attorneys’ fees and expenses), and liabilities (or actions or proceedings in respect thereof), whether or not involving a third-party claim (collectively, the “Losses”), relating to, arising out of, or in connection with, these Terms, Consultant’s engagement under these Terms, any Transaction, Succession Agreement, or other service or activity contemplated by these Terms or any Indemnified Party’s role in connection therewith, or the performance by Consultant of the Services contemplated in these Terms, and Client, jointly and severally, will reimburse each Indemnified Party for all costs and expenses (including, without limitation, attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened Dispute arising therefrom, whether or not such Indemnified Party is a party and whether or not such Dispute is initiated or brought by or on behalf of Client. Client will not be liable under the foregoing to the extent that any Losses are determined pursuant to a final, non-appealable judgment by a court of competent jurisdiction to have resulted directly and primarily from Consultant’s bad faith or willful misconduct.
If the indemnification of an Indemnified Party provided for in these Terms is for any reason held unenforceable, although otherwise applicable in accordance with its terms, Client, jointly and severally, agrees to contribute to the Losses for which such indemnification is held unenforceable (i) in such proportion as is appropriate to reflect the relative benefits to Client, on the one hand, and Consultant, on the other hand, of any contemplated Transaction, Succession Agreement, or other business relationship under these Terms (whether or not such Transaction, Succession Agreement, or other business relationship is consummated), or (ii) if (but only if) the allocation provided for in clause (i) is for any reason held unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i), but also the relative fault of Client, on the one hand, and Consultant, on the other hand, as well as any other relevant equitable considerations. Client agrees that, for the purposes of this paragraph, the relative benefits to Client and Consultant of any contemplated Transaction, Succession Agreement, or other business relationship (whether or not such Transaction, Succession Agreement, or other business relationship is consummated) under these Terms will be deemed to be in the same proportion as the fees paid or payable to Consultant in connection with the transaction bears to the total value of the Transaction, Succession Agreement, or other business relationship; provided, however, that, to the extent permitted by applicable law, in no event will the Indemnified Parties be required to contribute an aggregate amount in excess of the aggregate fees actually paid to Consultant under these Terms.
Client agrees that Client will not settle, compromise, or consent to the entry of any judgment in any pending or threatened Dispute in respect of which indemnification could be sought under these Terms (whether or not Consultant or any other Indemnified Party is an actual or potential party to such Dispute), unless such settlement, compromise, or consent includes an unconditional release of each Indemnified Party from all liability arising out of such Dispute and contains no admission or inference of wrongdoing on the part of any Indemnified Party.
If Consultant or any other Indemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against Client in which such party is not named as a defendant, Client, jointly and severally, will reimburse Consultant for all expenses incurred in connection with such party’s appearing and preparing to appear as such a witness, including, without limitation, the fees and disbursements of its legal counsel.
The obligations of Client referred to above are in addition to any liability that Client may otherwise have and will be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of any Indemnified Party and Client. The provisions of this Section 27 will continue to apply and will remain in full force and effect regardless of any modification, expiration, or termination of these Terms or the completion of Consultant’s services thereunder.
28. Confidentiality. Client acknowledges that Consultant and the Candidates desire to maintain the confidentiality of the information disclosed to Client pursuant to these Terms or in any other capacity or role in which Consultant discloses information to Client on behalf of others who have engaged Consultant to perform services. Client agrees with Consultant to hold all such Confidential Information (as hereinafter defined) in the strictest confidence at all times and not to disclose or permit access to any Confidential Information to anyone without the express prior written consent of Consultant and such Candidate other than those Representatives of Client to whom disclosure or access is required for Client to evaluate a Candidate’s business. Disclosure of Confidential Information will be made to such Representatives only in connection with a potential Transaction, Succession Agreement, or other business or personal arrangement, and then only if such Representatives understand and agree to maintain the confidentiality of the Confidential Information. Client will be responsible for any breach of this Section 28 by its Representatives, and neither Client nor its Representatives will use or permit the use of Confidential Information in any manner or for any purpose whatsoever except as required for Client to evaluate a Candidate’s business or as may be required by applicable law or legal process. If Client does not consummate a Transaction or enter into a Succession Agreement or other business or personal arrangement with a Candidate, Client, at the close of discussions/negotiations with such Candidate, will destroy and/or return (and cause any of its Representatives provided access pursuant to the terms hereof to destroy and/or return) to such Candidate (at Consultant’s or such Candidate’s request) all information and data provided to Client and such Representatives, and neither Client nor any such Representative will retain any copy, reproduction, or record thereof and Client will certify in writing to Consultant that such destruction and/or return by Client and such Representative has been completed in full. No part of these Terms may be used, copied, reproduced, disseminated, distributed, redistributed, sold, published, republished, publicly displayed, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written consent of Consultant.
For purposes of this Section 28, the term “Confidential Information” means (a) all information disclosed, displayed, or otherwise made available to Client by Consultant or any Cooperating Person or through Client’s use of the Services or Consultant’s websites including, without limitation, (i) a Candidate’s identity, (ii) the identity of any other Person introduced to, referred to, or brought to the attention of Client by Consultant or any Cooperating Person and/or that Client became aware of, or that became aware of and/or otherwise made known to Client, as a direct or indirect result of the Services or other activities of Consultant or any Cooperating Person, (iii) the fact that a Candidate’s business is or may be for sale or a Candidate is otherwise seeking to consummate a Transaction or enter into a Succession Agreement or other business or personal arrangement, and (iv) the terms of these Terms; and (b) all financial, production, marketing, and pricing information, business methods, business manuals, manufacturing procedures, correspondence, processes, data, contracts, customer lists, customer information, employee lists, business intelligence, trade secrets, proprietary software, and any other information, whether written, oral, in electronic format, or otherwise made known to Client, directly or indirectly, (i) from or as a result of any communications with a Candidate or its Representatives, (ii) from or as a result of any inspection, examination, or other review of the books, records, assets, liabilities, processes, or production methods of a Candidate’s business, (iii) during or as a result of visits to a Candidate’s premises or place of business, or (iv) through disclosure or discovery in any other manner.
Confidential Information does not, however, include information that Client can demonstrate: (a) was in Client’s possession prior to its being furnished to Client under the terms of this Section 28, provided, that the source of that information was not known by Client after due inquiry to be bound by a confidentiality or non-disclosure obligation, covenant, or agreement with, or other continual, legal, or fiduciary obligation of confidentiality to, a Candidate; (b) is now, or hereafter becomes, through no act or failure to act on the part of Client, generally known to the public; (c) is rightfully obtained by Client from a third party, without breach of any obligation to a Candidate or other third party or any legal or contractual obligation or restriction; or (d) is independently developed by Client without use of or reference to the Confidential Information, provided such independent development is reasonably documented by Client.
Client further acknowledges and agrees that: (a) neither Client nor the Client’s Representatives will contact a Candidate or a Candidate’s Representatives without such Candidate’s prior written consent; (b) as liquidated damages, Client will be liable to Consultant for Consultant’s applicable fees in the event of any breach by Client of Client’s obligations hereunder (e.g., without limitation, Client discloses a Candidate’s identity to a Person who is not a party to these Terms that results in a Transaction being consummated with such Candidate (e.g., a Transaction that would give rise to a Joint Venture (as defined in Section 4(e))); (c) notwithstanding any other provision of this Section 28, in addition to Consultant, each Candidate is intended to be a beneficiary of the duties and obligations of Client pursuant to this Section 28 and may prosecute any action at law or in equity necessary to enforce its terms and conditions as though a party hereto; and (d) the provisions of this Section 28 will continue to apply and will remain in full force and effect regardless of any modification, expiration, or termination of these Terms or the completion of Consultant’s services thereunder.
28. Miscellaneous Definitions. Capitalized terms used herein and not otherwise defined in the context in which they are used have the meanings ascribed to them below.
“Affiliation Arrangement” means any business or other arrangement in which any Candidate, directly or indirectly, affiliates or otherwise establishes any type of relationship with Client without actually consummating a Transaction beforehand (e.g., without limitation, a Candidate transitions to Client’s BD or RIA to establish a formal or informal working relationship), as determined by Consultant in its sole discretion.
“Benefiting Party” means any Person that, in any way, benefits from Consultant’s services or activities hereunder as a result of any direct or indirect breach by Client of any provision set forth in Section 8 (Non-Circumvention) or Section 28 (Confidentiality) of these Terms.
“Client Affiliate” means each Principal and any other Person that, directly or indirectly through one or more intermediaries, is in control of, is controlled by, or is under common control with, Client. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by”, and “under common control with”), as used with respect to any Person, means the power, directly or indirectly, either to (a) vote 5% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. Client Affiliate also includes, without limitation, all past, present, and future Representatives, Affiliated Persons, Informal Partners, employers, and affiliated and associated broker-dealers, registered investment advisers, and custodians of Client and any Client Affiliate (excluding, however, Consultant and its affiliates and their respective Representatives).
“Consideration” means, for the purposes of calculating the Transaction Fee, Joint Venture Fee, and Opportunity Fee (collectively, the “Applicable Fees”), the sum of the aggregate value, whether in cash, securities, other equity interests, assumption of (or purchase subject to) debt or liabilities (including, without limitation, accrued expenses, accounts payable, indebtedness for borrowed money, pension liabilities, and guarantees), license fees, royalty fees, joint venture interests, or other Property (as hereinafter defined), obligations, or services, paid or payable, directly or indirectly (in escrow or otherwise), or otherwise assumed in connection with a Transaction (including, without limitation, any amounts paid or payable, or otherwise assumed pursuant to any purchase and sale agreement, promissory note, or other loan agreement (whether standard, adjustable, forgivable, or otherwise), employment or consulting agreement, non-competition agreement, solicitor agreement, bonus agreement, option, warrant, earn-out, contingent payment right, or similar arrangement, agreement, or understanding, whether oral or written, associated with such Transaction), and all other things or value exchanged or to be exchanged in the future, directly or indirectly, in connection with such Transaction, all as determined in good faith by Consultant. In the case of a Transaction in which the calculation of Consideration excludes(ed) the allocated value of any acquired assets, equity interests, or other Property due to applicable law or otherwise, then Consideration will also include any other direct or indirect loan, debt, or other obligation of any kind or nature made, incurred, or assumed in connection with such Transaction in an amount up to the full allocated value of any such excluded assets, equity interests, or other Property to the extent not otherwise accounted for in the calculation of Consideration pursuant hereto, as determined in good faith by Consultant. Any recapitalization constituting a Transaction will be based upon the total Consideration, including the economic benefit attributable to any cash or debt, equity, or equity equivalent securities acquired or retained by the acquiree as a result of the Transaction. Further, a stock or other equity sale or exchange will be treated exactly as if it were an asset sale for purposes of this definition. That is, consideration for purposes of calculating the Applicable Fees will be deemed as including the total value of the liabilities on the balance sheet at the time of sale, the consideration paid shareholders/equity owners for their stock/equity interest (including all amounts paid, distributed, or issued to holders of options, warrants, or stock appreciation rights, whether vested or unvested), and all other consideration/economic benefit as delineated above. In the event any Transaction is deemed by Consultant to be a bona fide employment, solicitor, or other arrangement with no specific value or Consideration assigned to such Transaction (i.e., no purchase or sale occurs between the parties (e.g., without limitation, any type of merger, business combination, affiliation, or similar activity)) and notwithstanding any subsequent purchase or sale which will be deemed to be a separate Transaction, Consideration will be deemed to be the product of the hiree’s or other contracted party’s trailing twelve (12) months Gross Revenue (as hereinafter defined) multiplied by two (2), all as determined in good faith by Consultant. For the purposes of this definition, “Gross Revenue” means the total revenue, income, and other consideration generated by the hiree or other contracted party in the operation of such hiree’s or other contracted party’s business/practice/firm, including, without limitation, all gross dealer concessions, investment advisory fees, financial planning fees, insurance commissions, and any other revenue, income, or consideration, in whatever form, that is otherwise attributable to such hiree’s or other contracted party’s business/practice/firm.
“Cooperating Person” means any recruiter, consultant, third-party advisor, Candidate (whether or not Client consummated a Transaction or entered into a Succession Agreement or Affiliation Arrangement with such other Candidate), or other Person that, in any manner, directly or indirectly, whether before, during, or after the Term: (i) assists or attempts to assist Consultant in the performance of the services hereunder; (ii) is referred to, introduced to, or brought to the attention of Client by Consultant in connection with the activities of Consultant or its performance of services hereunder; or (iii) Client became aware of, or became aware of Client, as a direct or indirect result of Consultant’s activities or its performance of services hereunder.
“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, trust, firm, association, unincorporated organization, governmental authority, or other entity of any kind.
“Property” means all property, whether real, personal or mixed, tangible or intangible, or any interest therein that any Person directly or indirectly owns (in whole or in part), leases, holds for use or otherwise controls (e.g., without limitation, as a principal, beneficiary or trustee), or utilizes or employs in the operation of such Person’s business or otherwise.
“Representatives” means and includes, with respect to any Person, any of such Person’s owners, principals, controlling persons, equityholders, directors, officers, members, managers, partners, joint venturers, employees, independent contractors, consultants, advisors, agents, and other authorized representatives.
“Service Period” means and includes the Initial Term and any successive Renewal Period.
“Succession Agreement” means any type of guardian, business continuity, succession planning, right of first opportunity, right of first refusal, cross-purchase, buy-sell, option or similar, or equivalent agreement with respect to all or any portion of the business of any Candidate.
“Transaction” means, whether effected in one transaction or a series of transactions: (a) any merger, consolidation, exchange of equity interests, joint venture, partnership, affiliation, or other business combination or relationship pursuant to which all or any portion of the business of any Candidate is combined with that of Client; (b) any refunding, reorganization, recapitalization, or other corporate restructuring involving all or any portion of the business of any Candidate and Client; (c) the acquisition, directly or indirectly, by Client of all or any portion of the assets, equity interests, or other Property of, or of any right to all or any portion of the revenues or income of, any Candidate by way of negotiated purchase, lease, license, exchange, joint venture, or any other means; (d) the acquisition, directly or indirectly, by Client of an equity interest of any Candidate otherwise than through the acquisition of such Candidate’s capital stock or other equity interest including, without limitation, by means of the acquisition, directly or indirectly, of all or any part of such Candidate’s debt; (e) the acquisition, directly or indirectly, by any Candidate of all or any portion of the assets, equity interests, or other Property of, or of any right to all or any portion of the revenues or income of, Client by way of a negotiated purchase, lease, license, exchange, joint venture, or any other means; (f) the hiring, directly or indirectly, of any Candidate by Client (or the hiring, directly or indirectly, of Client by any Candidate) as a partner, employee, independent contractor, consultant, advisor, solicitor, or otherwise; or (g) the acquisition, directly or indirectly, by Client of all or any portion of the accounts or client relationships of any Candidate by way of or as a result of a breach of contract with such Candidate (e.g., without limitation, breach of a non-solicitation agreement), the termination of such Candidate by such Candidate’s primary employer or affiliated broker-dealer, registered investment adviser, or other regulated entity, the death or disability of such Candidate, or any other activity or event not otherwise specified herein, all as determined by Consultant in its sole discretion. For the purposes of this definition, “Client” means the undersigned client, whether one or more Persons, and also includes all Client Affiliates and Benefiting Parties.
