EXHIBIT 10.1
FEE AGREEMENT FOR INTRODUCTION SERVICES
This FEE AGREEMENT FOR INTRODUCTION SERVICES (the "Agreement") is
between The Hartcourt Companies, Inc., a Utah corporation (the "Company") and
Tang Xxx Xxxxx, an individual (the "Introducer").
WHEREAS, the Company acknowledges that Introducer's talents and
services are of a special, unique, unusual and extraordinary character and are
of particular and peculiar benefit and importance to the Company; and,
WHEREAS, Introducer has agreed to provide services to he Company with
respect to the Company's desire to identify and acquire Internet-related
businesses; and,
WHEREAS, this Agreement is made to set out the compensation, conditions
and guidelines that will govern the relationship between the parties.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the receipt and sufficiency of which is expressly acknowledged
by the parties hereto, the parties agree as follows:
The Services
Effective the date below, and for the term of this Agreement,
Introducer will use its best efforts to search for, identify
and make known to the Company, Internet-related businesses and
Assets ("Opportunities") which qualify as potential
acquisitions by the Company. In addition, Introducer will seek
out sources of funding, of whatever nature type and
description as shall be acceptable to the Company and
Intruducer will search for suitable candidates for employment
by the Company in its Chinese operations. Such efforts by
Introducer shall hereinafter be referred to as he "Services".
Term of Agreement
Unless otherwise terminated a provided hereunder, the Services
shall be provided to the Company from the Effective Date (as
defined below) through December 30, 2000.
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Costs and Expenses
The Company understands that, in the course of Introducer's
efforts to identify suitable acquisitions, strategic partners
or assets for the Company to purchase, it may be necessary for
Introducer to incur certain costs or expenses. The Company
will reimburse Introducer for its costs or expenses actually
incurred and reasonably necessary for Introducer to provide
the Services to the Company, as long as Introducer's costs and
expenses are reasonable and elated to evaluations carried out
for the Company's exclusive use. Subject to the foregoing, and
he Company's prior written approval, the Company will
reimburse Introducer for reasonable travel expenses including
lodging and the cost of a rental car, copy and filing fees,
and retrieval costs incurred in researching prospective
Opportunities.
Payment for Services/Stock Option
The Company agrees to satisfy Introducer's time and expense
incurred, up to and including the first acquisition by the
Company of an Opportunity introduced or arranged by Introducer
(the "Initial Acquisition") by way of an Option Agreement. The
Company hereby grants to Introducer he option to purchase up
to Five Hundred Thousand (500,000) shares of the Company's no
par value common stock (the "Option Shares") at a price of
Five Dollars Fifty Cents ($5.50) per share (the "Exercise
Price") pursuant to the Option Agreement, a copy of which is
attached hereto as Exhibit "A." The Option is non-transferable
and will expire unless exercised on or before the third
anniversary of the Effective Date hereof. Introducer has not
been engaged to exclusively perform, nor will Introducer
perform any services in connection with capital raising
transactions. It is mutually understood and agreed that any
fees for services provided by Introducer on behalf of or which
results in some benefit for the Company in connection with a
capital raising transaction shall be negotiated separately
from this Agreement and paid by the Company separately.
Registration of the Company Shares
No later than ten (10) days following the date hereof as to
the Company's shares underlying the Option, the Company will
cause such shares to be registered with the Securities and
Exchange Commission under a Form S-8 or other applicable
registration statement, and it shall cause such registration
statement to remain effective at all times while Introducer
holds the Option. At Introducer's election, the Option Shares
may be issued prior to registration in reliance on exemptions
from registration provided by Section 4(2) of the Securities
Act of 1933 (the Securities Act"), Regulation D of the
Securities Act, and applicable state securities laws.
Involvement of the Company
The Company expects to be kept informed on the progress of
Introducer's services and, in this regard, Introducer agrees
to keep the Company apprised of all material developments in
writing at least monthly.
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Termination
Either party may terminate this Agreement upon thirty (30)
days notice by registered or certified mail, return receipt
requested, addressed to the other party. If this Agreement is
terminated by either party, the Company shall only be liable
for payment of fees earned by Introducer as a result of work
prior to the effective date of the termination. The thirty
(30) days notice shall be measured from the date the notice is
mailed.
Assignment
Notwithstanding contained herein to the contrary, the rights
to the shares underlying the Option, and the obligation to
provide the Services set forth in this Agreement, may be
assigned or transferred by Introducer to an Affiliate or
subsidiary, or as the result of a corporate reorganization or
recapitalization of Introducer; otherwise, this Agreement and
the rights and obligations hereunder shall not be assigned.
For the purpose of this Agreement the term "Affiliate" shall
be defined as a person or enterprise that directly, or
indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with Introducer.
Counterparts
A facsimile, telecopy or other reproduction of this instrument may be
executed by one or more parties hereto and such executed copy may be
delivered by facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party
can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party
hereto, all parties agree to execute an original of this instrument as
well as any facsimile, telecopy or other reproduction hereof.
Further Documentation
Each party hereto agrees to execute such additional instruments and
take such action as may be reasonably requested by the other party to
effect the transaction, or otherwise to carry out the intent and
purposes of this Agreement.
Notices
All notices and other communications hereunder shall be in writing and
shall be sent by prepaid first class mail to the parties at the
following addresses, as amended by the parties with written notice to
the other:
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To Introducer: Tang Xxx Xxxxx
00X, Xxxxx 0
Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
To the Company: The Hartcourt Companies, Inc.
0000 X. Xxxxxxxxx Xxxx. Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to: Xxxxxxx Xxxx
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Governing Law
This Agreement was negotiated, and shall be governed by the laws of
Utah notwithstanding any conflict-of-law provision to the contrary.
Entire Agreement
This Agreement sets forth the entire understanding between the parties
hereto and no other prior written or oral statement or agreement shall
be recognized or enforced.
Severability
If a court of competent jurisdiction determines that any clause or
provision of this Agreement is invalid, illegal or unenforceable, the
other clauses and provisions of the Agreement shall remain in full
force and effect and the clauses and provisions which are determined to
be void, illegal or unenforceable shall be limited so that they shall
remain in effect to the extent permissible by law.
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Amendment or Waiver
Every right and remedy provided herein shall be cumulative with every
other right and remedy, whether conferred herein, at law, or in equity,
and may be enforced concurrently herewith, and no waiver by any party
of the performance of any obligation by the other shall be construed as
a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to a closing of the
Initial Acquisition, this Agreement may be amended by a writing signed
by all parties hereto.
Headings
The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the latter
of the dates written below.
The "Company"
The Hartcourt Companies, Inc.
Dated: April 19, 2000 By:
---------------------------------------
Name: Xxxx X. Xxxx
Title: Chairman
"Introducer"
Tang Xxx Xxxxx
Dated: April 19, 2000
---------------------------------------
Tang Xxx Xxxxx
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OPTION AGREEMENT WITH TANG XXX XXXXX
THIS OPTION AGREEMENT ("Agreement") is entered into effective the 19th
day of April 2000, by and between Tang Xxx Xxxxx, an individual ("Xxxxx"), and
the Hartcourt Companies Inc., a Utah corporation (the "Company").
WHEREAS, the Company proposes to issue to Xxxxx options to purchase
shares of its common stock (the ACommon Stock") in connection with the Company's
engagement of Xxxxx pursuant to the Advisory Agreement of even date between the
Company and Xxxxx, incorporated by reference herein (the AAdvisory Agreement");
and,
WHEREAS, to induce Xxxxx to execute the First Amendment to the Advisory
Agreement the Company hereby grants Xxxxx an option to purchase shares of the
Company's Common Stock subject to the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the mutual promises herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and subject to the terms and conditions set forth
below, Xxxxx and the Company agree as follows:
1. The Option
The Company hereby grants Xxxxx (hereinafter "Holder") an option (the
"Option") to acquire Five Hundred Thousand (500,000) shares of the
Company's Common Stock, subject to adjustment as set forth herein (such
shares, as adjusted, are hereinafter referred to as the "Option
Shares"), at the closing market price of Friday, April 14th, 2000 which
is Five Dollars and Fifty Cents($5.50) per share ("Option Price").
2. Term and Exercise of Option
A. Term of Option. Subject to the terms of this Agreement,
Holder shall have the right to exercise the Option in whole or
in part, commencing the date hereof through the close of
business on December 1, 2002.
B. Exercise of the Option. The Option may be exercised upon
written notice to the Company at its principal office setting
out the number of Option Shares to be purchased, together
with payment of the Option Price.
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C. Issuance of Option Shares. Upon such notice of exercise and
payment of the Option Price, the Company shall issue and cause
to be delivered within five (5) business days following the
written order of Holder, or its successor as provided for
herein, and in such name or names as the Holder may designate,
a certificate or certificates for the number of Option Shares
to be purchased. The rights of purchase represented by the
Option shall be exercisable, at the election of the Holder
thereof, either in full or from time to time in part, and in
the event the Option is exercised in respect of less than all
of the Option Shares purchasable on such exercise at any time
prior to the date of expiration hereof, the remaining Option
Shares shall continue to be subject to adjustment as set forth
in paragraph 4 hereof. The Company irrevocably agrees to
reconstitute the Option Shares as provided herein.
3. Reservation of Option Shares
The Company shall at all times keep reserved and available,
out of its authorized Common Stock, such number of shares of
Common Stock as shall be sufficient to provide for the
exercise of the rights represented by this Agreement. The
transfer agent for the Common Stock and any successor transfer
agent for any shares of the Company's capital stock issuable
upon the exercise of any of such rights of purchase, will be
irrevocably authorized and directed at all times to reserve
such number of shares as shall be requisite for such purpose.
The Company will cause a copy of this Agreement to be kept on
file with the transfer agent or its successors.
4. Adjustment of Option Shares
The number of Option Shares purchasable pursuant to this
Agreement shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
A. Adjustment for Recapitalization. Subject to paragraph 4.B
below, in the event the Company shall (a) subdivide its
outstanding shares of Common Stock, or (b) issue or convert by
a reclassification or recapitalization of its shares of Common
Stock into, for, or with other securities (a
"Recapitalization"), the number of Option Shares purchasable
hereunder immediately following such Recapitalization shall be
adjusted so that the Holder shall be entitled to receive the
kind and number of Option Shares or other securities of the
Company measured as a percentage of the total issued and
outstanding shares of the Company's Common Stock as of the
hereof which it would have entitled to receive immediately
preceding such Recapitalization, had such Option been
exercised immediately prior to the happening of such event or
any record date with respect thereto. An adjustment made
pursuant to this paragraph shall be calculated and effected
taking into account the formula set forth in paragraph 4.B.
below and shall become effective immediately after the
effective date of such event retroactive to the effective
date.
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B. Adjustment of the Exercise Price and Number of Option
Shares. In the event of any change in the Company's Common
Stock by reason of a reverse stock split, neither the number
nor the Option Price of the shares subject to this Option
shall be changed or be adjusted.
C. Preservation of Purchase Rights Under Consolidation.
Subject to paragraph 4.B above, in case of any
Recapitalization or any other consolidation of the Company
with or merger of the Company into another corporation, or in
case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an
entirety, the Company shall prior to the closing of such
transaction, cause such successor or purchasing corporation,
as the case may be, to acknowledge and accept responsibility
for the Company's obligations hereunder and to grant the
Holder the right thereafter upon payment of the Option Price
to purchase the kind and amount of shares and other securities
and property which he would have owned or have been entitled
to receive after the happening of such consolidation, merger,
sale or conveyance. The provisions of this paragraph shall
similarly apply to successive consolidations, mergers, sales
or conveyances. D. Notice of Adjustment. Whenever the number
of Option Shares purchasable hereunder is Adjusted, as herein
provided, the Company shall mail by first class mail, postage
prepaid, to the Holder notice of such adjustment or
adjustments, and shall deliver to Holder setting forth the
adjusted number of Option Shares purchasable and a brief
statement of the facts requiring such adjustment, including
the computation by which such adjustments was made.
5. Failure to Deliver Option Shares Constitutes Breach Under
Advisory Agreement
Failure by the Company, for any reason, to deliver the
certificates representing any shares purchased pursuant to
this Option within the five (5) business day period set forth
in paragraph 2 above, or the placement of a Stop Transfer
order by the Company on any Option Shares once issued, shall
constitute a "Breach" under the Advisory Agreement and, for
the purpose of determining the terms of this Agreement, shall
automatically toll the expiration of this Agreement for a
period of time equal to the delay in delivering the subject
shares or term of the Stop Transfer order.
6. Assignment
The Option represented by this Agreement may only be assigned
or transferred by Xxxxx to an affiliate or subsidiary, or as
the result of a corporate reorganization or recapitalization.
For the purpose of this Option the term "Affiliate" shall be
defined as a person or enterprise that directly, or indirectly
through one or more intermediaries, controls, or is controlled
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by, or is under common control with the Company otherwise,
this Agreement and the rights hereunder shall not be assigned
by either party hereto.
7. Counterparts
A facsimile, telecopy or other reproduction of this instrument
may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile or similar
instantaneous electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding
and effective for all.
8. Further Documentation
Each party hereto agrees to execute such additional
instruments and take such action as may be reasonably
requested by the other party to effect the transaction, or
otherwise to carry out the intent and purposes of this
Agreement.
9. Notices
All notices and other communications hereunder shall be in
writing and shall be sent by prepaid first class mail to the
parties at the following addresses, as amended by the parties
with written notice to the other:
To Company: The Hartcourt Companies, Inc.
0000 X. Xxxxxxxxx Xxxx., Xxxxx #000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000)000-0000
To Xxxxx: Tang Xxx Xxxxx
00X, Xxxxx 0
Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
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With copy to: Xxxxxx & Weed
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
11. Governing Law
This Agreement was negotiated, and shall be governed by the
laws of Utah notwithstanding any conflict-of-law provision to
the contrary.
12. Entire Agreement
This Agreement sets forth the entire understanding between the
parties hereto and no other prior written or oral statement or
agreement shall be recognized or enforced.
Severability
If a court of competent jurisdiction determines that any
clause or provision of this Agreement is invalid, illegal or
unenforceable, the other clauses and provisions of the
Agreement shall remain in full force and effect and the
clauses and provisions which are determined to be void,
illegal or unenforceable shall be limited so that they shall
remain in effect to the extent permissible by law.
Amendment or Waiver
Every right and remedy provided herein shall be cumulative
with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the
same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to Closing, this
Agreement may be amended by a writing signed by all parties
hereto.
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Headings
The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first written above.
"Xxxxx"
Tang Xxx Xxxxx, an individual
---------------------------------------
Tang Xxx Xxxxx
The "Company"
The Hartcourt Companies, Inc.
By:
----------------------------------
Name: Xxxx X. Xxxx
Title: Chairman
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