Exhibit 10.13 First Montauk Securities Corp - original term sheet
November 21, 2002
Emergency Filtration Products, Inc.
000 Xxxxxx Xxx
Ste A115
Henderson, NV 89014
ATTN: Xxxx Xxxxxxx, President
Re: Fee Agreement
-------------
Dear Xx. Xxxxxxx:
This letter sets forth the Agreement by and among Emergency Filtration Products,
Inc. its subsidiaries and its affiliates, (the "Company") and First Montauk
Securities Corp. and its subsidiaries and its affiliates ("Montauk") with
respect to the engagement of Montauk to introduce to the Company potential
funding Source(s).
In connection with its engagement hereunder, this Letter Agreement confirms the
Company's understanding of Montauk's intention to attempt to utilize its best
efforts to affect the following:
1. Introduce to the Company possible funding Source(s).
2. Provide such other investment banking and advisory services to the Company as
requested.
3. Introduce to the Company possible merger & acquisition candidates.
4. Evaluate the Company's possible merger & acquisition candidates.
Notwithstanding the foregoing, the intent herein described shall not obligate
Montauk to effect any public or private financing for the Company. Any such
obligation shall be conditioned in its entirety upon the execution and delivery
by Montauk of an Agency or Underwriting Agreement satisfactory to Montauk and
the Company.
It is understood and acknowledged by the parties that the value of Montauk's
advice is not measurable in a quantitative manner, and Montauk shall be obliged
to render advice, upon request of the Company, in good faith, as shall be
determined by Montauk, but shall not be obligated to spend any specific amount
of time in doing so.
1. Compensation:
-------------
a) The Company agrees to pay to Montauk at each full or incremental closing of
any financing undertaken by the Company from a Source (s) (defined
hereunder) introduced by Montauk (the "Transaction"), (i) a cash
Transaction Fee of 8% of the amount financed from Montauk's Source(s) (ii)
placement agent warrants, at an exercise price no more favorable as given
to the investors in such transaction, or common stock equal to 10% of the
ownership given to any equity raised and (iii) a 2% non-accountable expense
allowance. All funds shall be deposited in an escrow account to be
designated by Montauk and released to the Company at the same time as
payment of the above stated fees and expenses are made to Montauk. Montauk
retains the right to sub-engage other placement agents and to pay, from
Montauk's compensation, other sub-engaged placement agents' compensation
and any finder's fees. Montauk will notify the Company prior to
sub-engaging other placement agents. The Company will also pay at the
closing of the Transaction, Montauk's legal expense.
119
2. Access to Premises:
-------------------
In connection with the performance of services hereunder, the Company shall make
its facilities, management and employees available to Montauk and its
representatives, during normal working hours, and shall be responsive to any and
all reasonable requests for information made by Montauk, with reasonable notice
and with confidentiality. In performing its services hereunder, Montauk shall be
entitled to rely upon and assume, without independent verification, the accuracy
and completeness of all information that is available from public sources and of
all information that has been furnished to it by the Company and shall have no
obligation to verify the accuracy or completeness of any such information or to
conduct any appraisal of any assets.
3. Future Financing:
-----------------
a) If the Company were to receive any additional capital within thirty-six
months from the closing of any financing from a Source(s) introduced by
Montauk and/or from any Source(s) introduced to the Company by Montauk, the
Company will pay to Montauk a cash fee of 10% of the amount raised at the
closing of any such financing. The Company will not circumvent Montauk and
will not attempt to contact, solicit, deal directly with such Source(s) or
profit from the introductions of Source(s) without prior written consent of
an officer of Montauk. As used in this Letter Agreement, the term
"Source(s)" shall be broadly interpreted to include, without limitation,
any corporation, company, institution, partnership, individual and all of
the Sources' affiliates that are directly or indirectly introduced to the
Company by Montauk.
b) If Montauk `s introduction s result in the closing of a financing of a
minimum of $200,000.00 for the Company (the "Watermark Transaction")
Montauk will automatically become the Company's exclusive investment
banker/placement agent, which grants Montauk the exclusive right to seek
financing for the Company for a period of six (6) months from the Closing
of the Watermark Transaction. Upon successful completion of the Watermark
Transaction, Montauk and the Company will amend this Letter Agreement
incorporating any new arrangements.
4. Expenses:
---------
The Company hereby agrees to pay all actual documented costs and expenses
incurred by Montauk in connection with its obligations and duties hereunder,
including but not limited to travel, mailing and expenses of Montauk's counsel.
These expenses shall be agreed to in writing.
5. Indemnification:
----------------
The Company agrees to indemnify Montauk and certain other entities and persons
as set forth in Schedule 1.
6. Disclosure:
-----------
(a) The Company recognizes and confirms that Montauk, in acting pursuant to
this engagement, will be using information in reports and other information
provided by others, including, without limitation, information provided by
or on behalf of the Company, and that Montauk does not assume
responsibility for and may rely, without independent verification, on the
accuracy and the completeness of any such reports and information. The
Company hereby warrants that all of its public filings, including but not
limited to, reports filed under the Securities Exchange Act of 1934 as
amended, and any other information relating to the Company which has been
publicly disseminated or delivered to Montauk, will not contain any untrue
statement of a material fact or omit to state any material fact or omit to
state any material fact necessary to make the statements contained herein,
in the light of the circumstances under which they were made, not
misleading. The Company agrees to provide Montauk with (i) prompt notice of
any material development affecting the Company; (ii) such other information
concerning the business and financial condition of the Company as Montauk
may from time to time reasonably request.
(b) The Company agrees that any information or advice rendered by Montauk or
its representatives in connection with this engagement is for the
confidential use of the Company only and, except as otherwise required by
law, the Company has not and will not permit any third party to disclose or
otherwise refer to such advice or information in any manner without
Montauk's prior written consent, unless such information becomes part of
the public domain through no fault of the Company.
(x) Xxxxxxx agrees that any information, plans or data regarding the Company
and its activities is for the confidential use of Montauk only and, except
as otherwise required by law or otherwise in the public domain, Montauk
will not permit any third party to disclose or otherwise permit any third
party to disclose or otherwise refer to, use or act upon such information,
plans or data without the Company's prior written consent.
120
7. Miscellaneous:
--------------
(a) The Company has not taken, and will not take, any action, directly or
indirectly, that would prevent the Company from utilizing any form of
Registration Statement under the Securities Act of 1933 as amended or that would
limit the availability of any federal or state exemption from the Registration.
(b) Montauk may, at its own expense, place announcements or advertisements
in financial newspapers and journals describing its services hereunder, provided
that the same shall comply with securities laws and shall be approved by the
Company prior to dissemination.
8. Governing Law:
--------------
This Agreement (a) shall be governed by and construed in accordance with the
laws of the State of New Jersey and the parties agree that any dispute, claim or
controversy relating to or arising out of this Agreement or the performance of
its terms shall be resolved by arbitration before the American Arbitration
Association and shall be conducted in the County of Monmouth State of New
Jersey, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof, (b) incorporates the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all previous agreements should they exist hereto, (c) may not be
amended or modified except in writing executed by the Company and Montauk and
(d) shall be binding upon and inure to the benefit of the Company, Montauk, and
other indemnified Parties and their respective successors and assigns.
If you are in agreement with the foregoing, please execute the enclosed
counterpart of this letter in the space below provided for that purpose and
deliver it to the undersigned, whereupon the terms hereof shall become a binding
agreement between us.
The investment banking staff of Montauk and its affiliates look forward to
working with you.
Very truly yours,
-------------------------------
First Montauk Securities Corp.
Xxxx Xxxxxxxx
President / CEO
AGREED TO AND ACCEPTED
THIS ___ DAY OF ____________, 2002
-------------------------------
Emergency Filtration Products, Inc.
By: Xxxx Xxxxxxx
President
121
