EXHIBIT 10.12
[LOGO]
[LETTERHEAD]
March 14, 2000
Mr. Xxx Xxxxx
000 Xxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Dear Xx. Xxxxx:
This Agreement confirms our understanding with regard to engaging
Xxxxxxxxxxx.xxx and Xxx Xxxxx (hereinafter collectively known as "the
Consultants"), as financial and strategic advisors to Xxxxxx.xxx, Inc. (the
"Company" which, together with the Company's affiliates and any entity that
the Company or any of its affiliates may form to pursue any development or
transaction contemplated hereby, are collectively referred to herein as, the
"Group"). References herein to the Consultants shall relate to Xxx
Xxxxxxxxxxx as principle representative of Xxxxxxxxxxx.xxx, as well as Xxx
Xxxxx.
1. The Consultants, in their capacity as financial and strategic advisors to
the Group, will perform such of the following financial and strategic
services as the Group may reasonably request during the term of the Agreement:
(a) working with senior management of the Group to strengthen the
positioning and communications of the Group to its principal markets
and potential investors, focusing on IR presentations, branding
and messaging, and general development and improvement of business
plans;
(b) facilitating introductions to qualified investors, with the aim of
broadening the share base of the Group;
(c) providing advice and support to management in the raising of any
additional capital that may be required in the future, through
equity/debt issues, private placements or other means, and
specifically helping with introductions that may lead to direct
investments;
(d) working with the Group to reorganize its current investment
alternatives, which may include review of the Group's convertible
preferred agreements;
(e) keeping the Group abreast of developments within the sector vis a
vis competitors, and bringing to the Group's attention any
suitable direct investment, merger, acquisition,
partnership, or any other potentially beneficial opportunity about
which Consultants may become aware;
(f) assisting with broker/investment bank introductions and helping to
develop key communication points, including efforts to establish
research coverage of the Group;
(g) advising the Group on financial PR, advertising and marketing
matters and forwarding suggestions for an appropriate firm to act
for the Group;
(h) utilizing a broad range of contacts both domestically and
internationally to increase investor awareness of the Group; and
(i) assisting in broadening the number of market makers in the Group's
securities.
2. In consideration for the Consultants' rendition of the above-described
services, the Company shall grant and deliver to the Consultants, divided
between them in such manner as they shall designate:
(a) immediately upon the execution of this agreement, five year
warrants to purchase 80,000 shares of the Company's common stock
at an exercise price of $3.52 per share;
(b) on the first day of each month during the six month period
commencing in April 2000, five year warrants to purchase 5,000
shares of the Company's common stock at an exercise price of $3.52
per share; and
(c) at the discretion of the Company's Chief Executive Officer, on or
about October 1, 2000, five year warrants to purchase up to 30,000
shares of the Company's common stock at an exercise price of $3.52
per share. In the event that the employment of the Company's Chief
Executive Officer shall be terminated for any reason on or before
October 1, 2000, such warrants shall automatically be granted to
Consultants on the date of such termination.
3. The Consultants shall have, with respect to the shares of common stock
issuable upon exercise of the warrants identified in Section 2 hereof,
the same registration rights which were granted with respect to the
common stock issuable upon conversion of the Series A Preferred Stock of
the Company which is held by the Gem Group. Such registration rights are
set forth in Annex A hereto.
4. It shall be expressly understood that all services rendered by the
Consultants hereunder will be on a best efforts basis, and that the
warrants and other compensation delivered and/or paid pursuant to this
Agreement shall not be withdrawn or cancelled by the Group at any time.
5. In the event that the Company (i) raises capital through a private
offering of debt, equity or convertible securities of the Company, or a
parent, subsidiary or other affiliate of the Company; or (ii)
effectuates a merger, acquisition, consolidation, reorganization,
recapitalization, business combination or other transaction pursuant to
which the Company acquires another entity subsequent to the date hereof
and on or prior to one year from the
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date of termination in this Agreement, irrespective of any reason for
such termination, and such capital formation transaction, merger,
acquisition, consolidation, reorganization, recapitalization, business
combination or other transaction is effectuated as a result of any
introduction made by Xx. Xxxxx to the Company, then the Company hereby
agrees to pay to Xx. Xxxxx the following cash consideration, which
payment shall be due and payable, except as hereinbelow provided, in
cash on the date of any such closing with respect thereto:
5% of that portion of the total consideration which is less than or
equal to $5,000,000; and
3% of the balance, if any, of the total consideration which is in
excess of $5,000,000.
In lieu of receiving the foregoing consideration in cash, if the Company so
requests, and Xx. Xxxxx grants such request, such consideration shall be paid
in the form of a five year warrant to purchase such number of shares of the
Company's common stock, and providing for such exercise price, registration
rights and other terms, as shall be acceptable to the parties.
(a) For purposes of this Agreement, "consideration" shall mean the
total present value of all cash, securities, or other property (i)
received by the Company at the closing of a transaction referred
to above or to be received in the future by it with respect to
such transaction (other than payments of interest or dividends);
(ii) paid by the Company as part of the purchase price in
connection with the acquisition of the (X) assets or (Y) stock
(and any securities, including debt, options and warrants
convertible into capital stock, or other rights to acquire such
capital stock) by the Company or a wholly-owned subsidiary thereof
of another company at the closing of a transaction referred to
above or to be received in the future by such other company or its
securityholders with respect to such transaction (other than
payments of interest or dividends); (iii) to be received by the
company's securityholders (other than optionees under the
Company's employee stock plans) in the event of the merger of the
Company into another entity where the Company is not the survivor;
(iv) to be received by another company's securityholders (other
than optionees under its employee stock plans) in the event such
other company merges with the Company or an affiliate of the
Company where such other company is not the survivor; and (v)
transferred or contributed to a joint venture or similar joint
enterprise or undertaking by the venturers within twelve months of
the formation thereof or as specifically required under the
controlling agreement among the venturers. In the event of any of
the scenarios referred to in clauses (i) through (iv) above, the
amount by which the assumption, directly or indirectly (by
operation of law or otherwise), or any repayment of any long-term
liabilities (liabilities maturing more than one (1) year after the
consummation of the transaction) of the acquired or non-surviving
entity exceeds its current assets on hand at closing, shall be
considered consideration. In the event a transaction referred to
above is consummated in one or more steps and/or the consideration
payable with respect to such transaction shall be payable in
installments, including without limitation, any additional
consideration to be paid in any subsequent step in the
transaction, all such amounts shall be included in the definition
of consideration, and shall be due and payable as and when each
such step is completed
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and/or each such installment is paid, whichever shall be
applicable. For purposes of this paragraph 4, consideration is not
deemed to include amounts paid (X) in connection with signing
bonuses for employment contracts, and (Y) with respect to
employment or consulting contracts or other contracts for services
rendered or to be rendered to the extent the amount payable
thereunder is the same as the amount to be paid prior to the
transaction.
(b) If all or a portion of the consideration paid in the transaction
is other than cash or securities, then the value of such non-cash
consideration shall be the fair market value thereof on the date
the transaction is consummated as mutually agreed upon in good
faith by the Company and Consultants. If the parties cannot so
agree, they shall jointly select an independent appraiser to
determine such value. The decision of the independent appraiser
shall be binding. The Company shall bear one half of the cost of
such appraisal, and Consultants shall be responsible for the
balance thereof. If such non-cash consideration consists of common
stock, options, warrants or rights for which a public trading
market existed prior to consummation of the transaction, then the
value of such securities shall be determined by the average
closing or last sales price for the ten (10) trading days prior to
the consummation of the transaction; provided, however, that if
such non-cash consideration consists of newly-issued, publicly
traded common stock, options, warrants or rights for which no
public trading market existed prior to the consummation of the
transaction, then the value thereof shall be the average of the
closing prices for the 20 trading days subsequent to the fifth
trading day after the consummation of the transaction. In such
event, the fee payable to Consultants pursuant hereto shall be
paid on the 30th trading day subsequent to consummation of the
transaction. If no public market exists for the common stock,
options, warrants or rights issued in the transaction, then the
value of such securities shall be as mutually agreed upon in good
faith by the Company and Consultants. If such non-cash
consideration consists of preferred stock or debt securities, then
the value of such securities shall be the face or principal amount
thereof unless it is mutually agreed upon in good faith by the
Company and Consultants that the market value of such securities
is different than the face value or principal amount of such
securities, in which case the value of such securities will be the
fair market value of such securities as mutually agreed upon in
good faith by the Company and Consultants. If all or a portion of
the consideration payable in connection with a transaction includes
contingent future payments, then the Company shall pay Consultants
any additional cash fee, determined in accordance with this
paragraph 4, as, when, and if such contingent payments are paid.
(c) If the consideration to be paid is computed in any foreign
currency, the value of such foreign currency for purposes hereof
shall be converted into U.S. dollars at the prevailing exchange
rate on the date or dates on which such consideration is paid.
6. The Group hereby agrees to indemnify, defend and hold harmless each of
the Consultants, their respective employees and consultants and their
respective successors and assigns from and against any and all claims,
damages, losses, liability, deficiencies, actions, suits or proceedings
(collectively the "Losses") arising out of or resulting from: (i) any
breach of a
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representation, or warranty by any member of the Group contained in this
Agreement; or (ii) any activities or services performed hereunder by
Consultants, unless such Losses were the result of the intentional
misconduct or gross negligence of either of the Consultants or were the
result of any information supplied by either of the Consultants; or
(iii) any and all costs and expenses (including reasonable attorneys'
and paralegals' fees) related to the foregoing, and as more fully
described below. Consultants hereby agree to indemnify, defend and hold
harmless each member of the Group, and their respective officers,
directors and shareholders, and their respective successors and assigns
from and against any and all Losses arising out of or resulting from (i)
the intentional misconduct or gross negligence of either of the
Consultants, unless such Losses were the result of any information
supplied by any member of the Group; or (ii) any and all costs and
expenses (including reasonable attorneys' and paralegals' fees) related
to the foregoing, and as more fully described below.
(a) If either of the Consultants or any member of the Group (in each
case, the "Indemnified Party") receives written notice of the
commencement of any legal action, suit or proceeding with
respect to which the any member of the Group or either of the
Consultants (in each case, the "Indemnifying Party") is or may be
obligated to provide indemnification pursuant to this Section 6,
the Indemnified party shall, within thirty (30) days of the
receipt of such written notice, give the Indemnifying Party
written notice thereof (a "Claim Notice"). Failure to give such
Claim Notice within such thirty (30) day period shall not
constitute a waiver by the Indemnified Party of its right to
indemnity hereunder with respect to such action, suit or
proceeding if the Indemnifying Party is not materially adversely
affected by such delay. Upon receipt by the Indemnifying Party of
a Claim Notice from the Indemnified Party with respect to any
claim for indemnification which is based upon a claim made by a
third party ("Third Party Claim"), the Indemnifying Party may
assume the defense of the Third Party Claim with counsel of its
own choosing, as described below. The Indemnifying Party and the
Indemnified party shall cooperate with each other in the defense
of the Third Party Claim and shall furnish such records,
information and testimony and attend all such conferences,
discovery proceedings, hearings, trial and appeals as may be
reasonably required in connection therewith. The Indemnified Party
shall have the right to employ its own counsel in any such action,
and the fees and expenses of such counsel shall be at the expense
of the Indemnified Party unless the Indemnifying Party shall not
have promptly employed counsel to assume the defense of the Third
Party Claim, in which event such fees and expenses shall be borne
solely by Indemnifying Party. The Indemnifying Party shall not
satisfy or settle any Third Party Claim for which indemnification
has been sought and is available hereunder, without the prior
written consent of the Indemnified Party unless the Indemnified
Party shall be given a full release from all parties in connection
therewith. If the Indemnifying Party shall fail with reasonable
promptness either to defend such Third Party Claim, the Indemnified
Party may defend, satisfy or settle the Third Party Claim at the
expense of the Indemnifying Party and the Indemnifying Party shall
pay to the Indemnified Party the amount of any such Loss within
ten (10) days after written demand therefor. The indemnification
provisions hereunder shall survive the termination of this
Agreement.
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7. Consultants agree that all non-public information pertaining to the
prior, current or contemplated business of the Group are valuable and
confidential assets of the Group. Such information shall include,
without limitation, information relating to customer lists, bidding
procedures, intellectual property, patents, trademarks, trade secrets,
financing techniques and sources and such financial statements of the
Group as are not available to the public. Consultants, and any of their
officers, directors, employees, agents and shareholders shall hold all
such information in trust and confidence for the Group and shall not use
or disclose any such information for other than the benefit of the
Group's business and shall be liable for damages incurred by the Group
as a result of the use or disclosure of such information by Consultants,
and any of their officers, directors, employees, agents or shareholders
for any purpose other than the benefit of the Group's business, either
during the term of the attached Agreement or after the termination or
expiration thereof, except (i) where such information is publicly
available or later becomes publicly available other than through a
breach of this Agreement, or (ii) where such information is subsequently
lawfully obtained by Consultants from a third party or parties who are
not under an obligation of confidentiality to the Group, or (iii) if
such information is known to Consultants prior to the execution of this
Agreement, or (iv) as may be required by law. These confidentiality
obligations shall survive termination of this Agreement.
8. It is expressly understood and agreed that Consultants shall, at all
times, act as independent contractors with respect to the Group and not
as employees or agents of the Group, and nothing contained in the
attached Agreement shall be construed to create a joint venture,
partnership, association or other affiliation, or like relationship,
among the parties. It is specifically agreed that the relationship is
and shall remain that of independent parties to a contractual
relationship and that Consultants shall have no right to bind the Group
in any manner. In no event shall either party be liable for the debts or
obligations of the other except as otherwise specifically provided in
this Agreement.
9. This Agreement shall be governed by the laws of New York and may be
executed in counterparts, each of which together shall be considered a
single document. This Agreement will terminate one year from the date
hereof, unless amended in writing by the parties hereto on the same or
similar terms. This Agreement may not be assigned by the Group without
the prior written consent of Xxx Xxxxx.
(the balance of this page has been left blank intentionally)
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We are pleased to offer this engagement and look forward to you supplying
your services as a financial and strategic advisor to the Group. Please
confirm that the foregoing is in accordance with your understanding by
signing and returning to us the enclosed duplicate of this Agreement, which
shall thereupon constitute a binding Agreement between the Group and the
Consultants.
Very truly yours,
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
President
By: /s/ Xxxxx Xxxxxx
--------------------------
Name: Xxxxx Xxxxxx
Title: President
/s/ Xxx Xxxxx
------------------------------
Xxx Xxxxx
Xxxxxxxxxxx.xxx
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxxx
Title: Founding Partner
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