Sell-Side Engagement Agreement


This Agreement ("Agreement") is entered into as of date signed, by and between Small Business Deal Advisors, LLC (hereby referred to as "SBDA"), a limited liability company headquartered at 25 Division Ave S, Suite 225, Grand Rapids, Michigan 49503 and , a company/corporation registered with the State of at (hereby referred to as “Seller” or the “Company”).

RECITALS

Small Business Deal Advisors, LLC is a business brokerage that provides advisory services to companies and individuals in connection with and implementing mergers and acquisitions, divestitures, business valuations, and other strategic transactions.

Company desires to engage SBDA to serve as its sole and exclusive mergers and acquisitions advisor for the purpose of assisting in the possible sale of Company or its business assets.

AGREEMENT

Now, therefore, in consideration of the premises and of the mutual covenants contained herein, the parties agree as follows:

1. Engagement. Subject to all of the terms and conditions in this Agreement, SBDA is hereby engaged as Company's sole and exclusive mergers & acquisitions advisor during the Term (as hereinafter defined) for the purpose of assisting Company in analyzing certain options and in conducting discussions and negotiations leading to the consummation of the sale of all or a portion of the stock or all or a portion of the assets of Company, by sale, merger, consolidation or simi-lar transactions on terms and conditions acceptable to Company. For purposes of this agreement, sale of Company or its assets or receipt of a capital investment will be considered a ''Transaction".

2. Term. The term ("Term") of SBDA engagement as mergers & acquisitions advisor for Seller will commence on the date hereof, and will expire upon (1) termination by either Seller or SBDA at any time, or (2) upon satisfactory completion of a Transaction.

3. Retainer. Upon signing of this engagement, the Company will pay to SBDA a monthly non-refundable Retainer Fee of four hundred ninety-five dollars ($495.00). One hundred percent (100%) of Retainer Fees will be credited towards the Success Fee at close.

4. Fees. If during the term of this Agreement, or for the period of two [2] years after the term of SBDA’s engagement, a Transaction is consummated with parties identified by SBDA or Company during the term of the engagement, then Company will pay SBDA a cash Success Fee of eight percent (8%) of the total Consideration for the sale of all or part of the business; plus a fee of seven percent (7%) on the sale or lease of the associated real estate.

In the case of leases entered into as part of a Transaction, the Success Fee for rents payable during the term of the lease will be payable at the closing. In the case of options, including options to buy or renew a lease, the Success Fee will be payable upon exercise of the option.

All Fees shall be paid at the time of closing, except for commission on earn-out consideration received based on future business performance, which will be paid within 10 days of receipt by Company. Company agrees to grant SBDA access to documentation related to amounts received for earn-out monies received.

No Success Fees will be paid unless a transaction takes place.

In the event of a sale, "Consideration" means the cash and all other consideration directly or indirectly furnished by the Buyer and, without limitation, includes the purchase price of the assets, rights, and property, plus any debt, liabilities, lease, royalty, non-compete payment or employment/consulting obligations at above-market rates entered into or satisfied by Buyer in connection with the sale and/or assumed by the Buyer. Consideration does not include Company’s cash.

The Success Fee shall be a minimum of $12,000 regardless of Consideration or credited Retainer Fees.

Should Company be a franchisee, no success fee will be payable if the franchisor identifies the buyer and consummates the transaction with Company. Notwithstanding the foregoing, in the case of a franchisor that exercises its right of first refusal and purchases the Company, the Success Fee shall be payable in full.

5. Payment Method. Credit or debit card or bank/ACH information is required for auto-pay of Retainer Fees. No refunds will be issued. For any Success Fee due under this agreement, the payment method shall be bank wire transfer or check.

6. Confidentiality. The Company will provide SBDA with all financial and other information requested by SBDA for the purposes of rendering its services pursuant to this Agreement. All non-public information given to SBDA by the Company will be treated by SBDA as confidential and will be used only for the purposes of this Agreement; provided, however, that such information may be provided to other professional advisors or potential purchasers. The Company will prior approve materials that will be released to potential purchasers.

7. Reliance. The Company hereby represents and warrants the accuracy and completeness of all data, material and other information concerning the Company that has been or hereafter will be made available to SBDA by the Company or its agents (the "Information") and the Company agrees that SBDA may rely, without independent verification, on the accuracy and completeness of the Information.

8. Cooperation. The Company agrees that it must fully cooperate with SBDA in order to insure that SBDA can abide by its obligations under this Agreement. This Agreement is entered into by SBDA based on information that the Company has provided. If it later becomes known that the Company withheld, omitted, concealed, or failed to disclose any information that would change SBDA’s opinion about the potential for a Transaction to take place, SBDA has a right to immediately terminate this Agreement.

9. Representations and Warranties by Company. SBDA hereby represents and warrants that it does not have any class of securities registered, or required to be registered with the Securities and Exchange Commission (“SEC”) under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”), or with respect to which SBDA files, or is required to file, periodic information, documents or reports under Section 15(d) of the Exchange Act. SBDA hereby represents and warrants that it is a going concern.

10. Disclosure by SBDA. Neither SBDA nor any of its employees or agents is a broker-dealer registered under Section 15(b) of the Exchange Act. SBDA has no authority or ability to bind Company to any Transaction. SBDA, either directly or indirectly, shall not provide financing for any Transaction.  SBDA shall not have custody or control of, or otherwise handle funds or securities issued in connection with the Transaction. The Transaction cannot involve a public offering of securities. The Transaction cannot involve a shell company.  The Transaction cannot affect the transfer of securities to any person or group of persons that would be considered “passive investors.” SBDA shall not assist the formation of a group of buyers for the Transaction.

11. Obligation to Sell. The Company will have the unlimited and unrestricted right to accept or reject any and all purchasers for any reason whether reasonable or unreasonable, or decide not to sell its business.

Should a Transaction occur during the Engagement or within two years of termination of the Engagement, the Company agrees to provide SBDA the buyer's name and final purchase agreement.

12. Stock Transaction. If the Transaction involves the sale, exchange or issuance of securities, Company agrees that such Transaction cannot involve a public offering and any securities must be exchanged or issued pursuant to an applicable registration exemption under the Securities Act of 1933.

13. Indemnification. If, in connection with any services or matters that are the subject of this Agreement, SBDA becomes involved in any capacity in any action or legal proceeding, the Company agrees to reimburse SBDA for the reasonable legal fees, disbursements of counsel and other expenses (including the cost of investigation and preparation) incurred by SBDA and to indemnify and hold SBDA harmless against any losses, claims, damages or liabilities, joint or several, to which SBDA may become subject in connection with the services or matters which are the subject of this Agreement arising out of or resulting from the negligence, actions, representation or inactions of the Company.

14. Non-Discrimination. This Agreement is offered without respect to race, sex, color, creed, national origin, age, familial status, handicap, marital status or religion.

15. Escrow. SBDA or any other authorized escrow agent is authorized to accept receipt for and hold all money paid or deposited as a binder thereon in accordance with the law, and if such deposit shall be forfeited by the prospective Buyer, SBDA  may  retain  one‐half  of  such  deposit, but not  exceeding the total amount of the Success Fee.

16. Collections. Seller agrees that if SBDA is forced to commence legal proceedings in order to collect any unpaid portion of any fee due under the terms of this Agreement, Seller will be liable for all cost associated with the collection of those amounts, including but not limited to, actual attorney fees.

17. Severability. The invalidity or unenforceability of any particular provision of this Agreement will not affect the other provisions, and this Agreement will be construed in all respects as if such invalid or unenforceable provisions had not been contained herein.

18. Entire Agreement; Written Modifications. This instrument contains the entire agreement between the parties with respect to the subject matter hereof; all representations, promises and prior or contemporaneous understandings between the parties with respect to the subject matter hereof are merged into and expressed in this instrument; and any and all prior agreements between the parties with respect to the subject matter hereof are hereby superseded by this Agreement and canceled. This Agreement will not be amended, modified, or supplemented without the written agreement of the parties at the time of such amendment, modification or supplement.

19. Governing Law. This Agreement will be governed by and subject to the laws of the State of Michigan and all claims, disputes, and other matters between the parties of this agreement shall be brought in Kent County Court, in Grand Rapids, Michigan, or in the U.S. District Court, in Grand Rapids, Michigan. Parties waive any objection to personal jurisdiction or venue in any forum located in those jurisdictions. In no way, express or implied, will SBDA solicit or advertise the sale of stock. Company recognizes that SBDA has not offered opinions of law.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below.

Small Business Deal Advisors, LLC

__________________________________

 

Matthew “Max” L. Friar
Partner & Authorized Officer


__________________________________

Matthew Baas
Partner & Authorized Office

 

 

 

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                       Owner, Member & Authorized Signer

Date:

 

 

IF APPLICABLE: Real Estate Entity (If owned by a related entity):  

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                       Owner, Member & Authorized Signer

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Signature Certificate
Document name: Sell-Side Engagement Agreement
lock iconUnique Document ID: 10b2c93aed7b257e49ee14d7aab0a63ac2e06f0c
Timestamp Audit
January 7, 2021 8:26 am EDTSell-Side Engagement Agreement Uploaded by Matt Baas - [email protected] IP 73.161.236.168
July 8, 2021 8:11 am EDTSandy Kiriakidis - [email protected] added by Matt Baas - [email protected] as a CC'd Recipient Ip: 98.243.253.113
July 12, 2021 11:42 am EDTSandy Kiriakidis - [email protected] added by Matt Baas - [email protected] as a CC'd Recipient Ip: 98.243.253.113
July 12, 2021 11:42 am EDTBen Bishop - [email protected] added by Matt Baas - [email protected] as a CC'd Recipient Ip: 98.243.253.113
September 21, 2021 8:31 am EDTSandy Kiriakidis - [email protected] added by Matt Baas - [email protected] as a CC'd Recipient Ip: 73.161.236.168
September 21, 2021 8:31 am EDTBen Bishop - [email protected] added by Matt Baas - [email protected] as a CC'd Recipient Ip: 73.161.236.168
September 21, 2021 8:38 am EDTSandy Kiriakidis - [email protected] added by Matt Baas - [email protected] as a CC'd Recipient Ip: 73.161.236.168
September 21, 2021 8:38 am EDTBen Bishop - [email protected] added by Matt Baas - [email protected] as a CC'd Recipient Ip: 73.161.236.168
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