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EXHIBIT 10.4
INVESTMENT BANKING AGREEMENT
This Agreement is made as of January 14, 1998, by and between Wanderlust
Interactive, Inc., a Delaware corporation ("Contractor"), with its principal
offices at 0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000-0000, and Xxxxx Xxxx
Securities, Inc., a Texas corporation, ("LDWD") with its principal offices at
0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, XXX.
WITNESSETH
WHEREAS, Contractor requires expertise in the area of investment banking
to support its business and growth; and
WHEREAS, LDWD has substantial contracts among the members of the
investment community, investment banking expertise, and desires to act as a
consultant to provide investment banking and advisory services;
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein and subject specifically to the conditions
hereof, and intending to be legally bound thereby, the parties agree as follows:
1. CERTAIN DEFINITIONS--When used in this Agreement, the following terms shall
have the meanings set forth below:
1.1 Affiliate--any persons or entities controlled by a party.
1.2 Contractor--the Contractor who use the services of LDWD.
1.3 Contractor Clients--the Contractor's clients who use the services of
LDWD through the Contractor.
1.4 Contact Person--The person who shall be primarily responsible for
carrying out the duties of the parties hereunder. Contractor and LDWD
shall each appoint a Contact Person to be responsible for their respective
duties. In the event that one party gives notice to the other party in
writing that, in their reasonable opinion, the other party's Contact
Person is not able to fulfill their duties and responsibilities hereunder,
both parties shall mutually agree upon a replacement Contact Person within
10 days of the said notice.
1.5 Extraordinary Expenses--expenses that are beyond those expenses that
are usual, regular, or customary in the conduct of in-house activities in
fulfillment of the scope of this agreement.
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1.6 Equity - cash, securities or liquid assets, specifically excluding
real property.
1.7 Payment or Payable in kind - distribution of the proceeds of a
transaction in the same type and form as was given as valuable
consideration for the transaction.
2. CONTACT PERSONS. The Contact Person for Contractor is Mr. Xxx Xxxxx, III,
CEO, CFO. The Contact Person for LDWD is Xxxxx Xxxxxxxx, President.
3. SERVICES TO BE RENDERED BY LDWD. Services to be rendered, on a best efforts
basis, by LDWD are as follows:
3.1 Advice and Counsel. LDWD will provide advice and counsel regarding
Contractor's strategic business and financial plans, strategy and
negotiations with potential lenders/inventors, merger/acquisition
candidates, joint ventures, corporate partners and others involving
financial and financially related transactions.
3.2 Introductions to the Securities Brokerage Community. LDWD has a close
association with numerous broker/dealers and investment professionals
across the country and will enable contact between Contractor and/or
Contractor Clients to facilitate business transactions among them. LDWD
shall use their contacts in the brokerage community to assist Contractor in
establishing relationships with securities dealers and to provide the most
recent corporate information to interested securities dealers on a regular
and continuous basis. LDWD understands that this is in keeping with
Contractor's business objective to establish a nationwide network of
securities dealers who have an interest in Contractor's securities.
3.3 Market-making Intelligence. LDWD is a market-maker in numerous
securities and has access through its market-making facilities and
personnel to LDWD proprietary information. LDWD will monitor and react to
sensitive market information on a timely basis and provide advice, and
counsel and proprietary intelligence (including but not limited to
information on price, volume and the identification of market-makers,
buyers and sellers) to Contractor in a timely fashion with respect to
securities in which Contractor has and interest. Contractor understands
that this information is available from other sources but acknowledges that
LDWD can provide it in a more timely fashion and with substantial
value-added interpretation of such information. The foregoing
notwithstanding, no information will be provided to Contractor with respect
to the activities of any other LDWD customers or customer accounts without
such customer's prior consent.
3.4 Contractor and/or Contractor Client Transaction Due Diligence. LDWD
will undertake due diligence on all proposed financial transactions
affecting the Contractor, of which LDWD is notified in writing in advance,
including
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investigation and advice on the financial, valuation and stock price
implications thereof.
3.5 Additional Duties. Contractor and LDWD shall mutually agree upon any
additional duties which LDWD may provide for compensation paid or payable
by Contractor under this Agreement. Such additional agreement(s) may,
although there is no requirement to do so, be attached hereto and made a
part hereof by written amendments to be listed as "Exhibits" beginning with
"Exhibit A", and initialed by both parties.
3.6 Best Efforts. LDWD shall devote such time and best effort to the
affairs of the Contractor as is reasonable and adequate to render the
consulting services contemplated by this agreement. LDWD is not responsible
for the performance of any services which may be rendered hereunder without
the Contractor providing the necessary information in writing prior
thereto, nor shall LDWD include any services that constitute the rendering
of any legal opinions or performance of work that is in the ordinary
purview of the Certified Public Accountant. LDWD cannot guarantee results
on behalf of Contractor, but shall pursue all reasonable avenues available
through its network of financial contacts. At such time as an interest is
expressed by a third party in Contractor's needs, LDWD shall notify
Contractor and advise it as to the source of such interest and any terms
and conditions of such interest. The acceptance and consumption of any
transaction is subject to acceptance of the terms and conditions by
Contractor. It is understood that a portion of the compensation paid
hereunder is being paid by Contractor to have LDWD remain available to
assist it with transactions on an as needed basis.
4. COMPENSATION TO LDWD.
4.1 Initial Fee. Contractor shall pay LDWD an initial fee, according to
the "Addendum", of 100,000 (One Hundred Thousand) common stock shares and
50,000 (Fifty Thousand) common share warrants upon execution of this
agreement, the underlying shares to be registered with any current or next
offering (via piggyback registration rights which the Company will file
within 180 days) for LDWD's initial setup activities which are necessary
for LDWD to provide the services herein. These fees shall be considered in
arrears if not received by the tenth (10) business day following the due
date specified in the "Addendum". These shares are the same shares
mentioned in the Addendum.
4.2 Additional Fees. Contractor and LDWD shall mutually agree in writing
upon any additional fees which Contractor may pay in the future for
services rendered by LDWD under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so, be attached
hereto and made a part hereof as Exhibits beginning with Exhibit A.
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4.3 Optional Form of Payment. LDWD may, at the time for each payment and at
its sole option, elect to receive all or a portion of said fees in the form of
securities, equity, or financing instruments issued by Contractor to LDWD on
terms agreed by Contractor in writing.
4.4 Extraordinary Expenses. Extraordinary expenses (those not defined in 4.7)
of LDWD shall be submitted in writing to Contractor for approval prior to
expenditure and shall be paid by Contractor, within ten (10) business days of
receipt of LDWD request for payment.
4.5 Finder Fees.
A. In the event LDWD mutually agrees with Contractor to introduce
Contractor or a Contractor affiliate to any third party funding
source(s), underwriter(s), merger partner(s), or joint venture(s)
who enters into a funding, underwriting, merger, joint venture or
similar agreement with Contractor or Contractor's affiliate,
Contractor hereby agrees to pay LDWD a minimum advisory fee of 5%
of the gross proceeds derived from such funding, underwriting,
merger, joint venture or similar agreement with Contractor or
Contractor's client, unless generally accepted industry standards
dictate otherwise, payable upon the commencement of such funding,
underwriting, merger, joint venture or similar agreement with
Contractor or Contractor's client. This provision shall survive this
agreement, even though the term of this agreement may have expired,
as pursuant to the section titled "Term of Agreement and
Termination". Said advisory fee will be payable only upon closing or
funding of said transaction or part thereof.
B. LDWD may, at its sole option, elect to receive all or a portion of
said advisory fee as payment in kind, i.e., prorated in the same
form and type of securities, equity, or financing instruments
issued to the funding source or underwriter by Contractor. In the
event the exercise of this option results in additional expense
over and above the expense of the funding and/or underwriting then
the additional expenses shall be borne by LDWD. In addition the
exercise of this option by LDWD shall not impede or otherwise have
a negative effect on the funding or underwriting.
4.6 Interest on Funds Due. Contractor shall pay interest on all payments in
arrears due LDWD, at the rate of 10% per annum.
4.7 Expenses. All expenses including, but not limited to, all registration
fees paid to the Securities and Exchange Commission, fees and expenses of
accountants, fees and expenses of legal counsel, printing and engraving
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expenses, postage and distribution fees, transfer agent fees, escrow fees,
NASD registration or exchange listing fees, (but not including
underwriting discounts and commissions relating to shares and warrants of
any holder being offered thereby and fees and expenses of any special
counsel of any selling shareholder) of any registration(s) made pursuant
to paragraph (4.1) hereof shall be borne and paid by the Contractor. These
expenses shall be approved in writing by contractors if they total an
amount above $4,000. Underwriting discounts and commissions shall be borne
pro rata by any selling shareholder in proportion to the number of shares
being offered by such selling shareholder.
5. INDEMNIFICATION. The Contractor agrees to indemnify and hold harmless
LDWD, each of its officers, directors, employees and each person, if any,
who controls LDWD against any and all liability, loss, and costs, expenses
or damages, including but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever or howsoever
caused by reason of any injury (whether to body, property, personal or
business character or reputation) sustained by any person or to any person
or property by reason of any act, neglect, default or omission, or any
untrue or alleged untrue statement of a material fact, or any
misrepresentation of any material fact or any breach of any material
warranty or covenant by the Contractor or any of its agents, employees, or
other representatives arising out of, or in relation to, this Agreement.
Nothing herein is intended to nor shall it relieve either party from
liability for its own act, omission or negligence. All remedies provided
by law or in equity shall be cumulative and not in the alternative.
LDWD agrees to indemnify and hold harmless Contractor, each of its
officers, directors, employees and each person, if any, who controls
Contractor against any and all liability, loss, and costs, expenses or
damages, including but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever or howsoever
caused by reason of any injury (whether to body, property, personal or
business character or reputation) sustained by any person or to any person
or property by reason of any act, neglect, default or omission, or any
untrue or alleged untrue statement of a material fact, or any
misrepresentation of any material fact or any breach of any material
warranty or covenant by LDWD or any of its agents, employees or other
representatives arising out of, or in relation to, this Agreement. Nothing
herein is intended to nor shall it relieve either party from liability for
its own act, omission or negligence. All remedies provided by law or in
equity shall be cumulative and not in the alternative.
6. CONTRACTOR REPRESENTATIONS. Contractor hereby represents, covenants and
warrants to LDWD as follows:
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6.1 Authorization. Both Contractor and LDWD and its signatories herein have
full power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
6.2 No Violation. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate any provision
of the charter or by-laws of Contractor, or violate any term of provision of
any other Agreement or any statute or law.
6.3 Agreement in Full Force and Effect. All contracts, Agreements, plans,
leases, policies and licenses referenced herein to which Contractor is a party
are valid and in full force and effect.
6.4 Litigation. Except as set forth below, there is no action, suit, inquiry,
proceeding or investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or, to the best
knowledge of Contractor threatened against or invoking Contractor, or which
questions or challenges the validity of this Agreement and its subject matter;
and Contractor does not know or have any reason to know of any valid basis for
any such action, proceeding or investigation. See Quarterly report.
6.5 Consents. No consent of any person, other than the signatories hereto, is
necessary to the consummation of the transactions contemplated hereby,
including, without limitation, consents from parties to loans, contracts, lease
or other Agreements and consents from governmental agencies, whether federal,
state, or local.
6.6 LDWD Reliance. LDWD has and will rely upon the documents, instruments and
written information furnished to LDWD by the Contractor's officers, or
designated employees.
A. Contractor's Material Representations. All representations and
statements provided about the Contractor are true and complete and
accurate to the best of Contractor's knowledge. Contractor agrees to
indemnify, hold harmless, and defend LDWD, its officers, directors,
agents and employees, at Contractor's expense for any proceeding or
suit which may raise out of any inaccuracy or incompleteness of any
such material or written information supplied to LDWD.
B. Contractor's Client and Other Material. Contractor warrants that all
representation and statements provided, other than about the
Contractor, are, to the best of its knowledge, true and complete and
accurate.
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6.7 Services NOT EXPRESSED OR IMPLIED.
A. LDWD has not agreed with Contractor, in this Agreement or any
other Agreement, verbal or written, to be a market-maker (but
may be a placement agent by other "Selling Agreement" from time
to time) in Contractor's securities or in any specific
securities or securities in which Contractor or Contractor's
Client has an interest; and,
B. Any payments made herein to LDWD are not, and shall not be
construed as, compensation to LDWD for the purposes of making a
market, to cover LDWD out-of-pocket expenses for making a
market, or for the submission by LDWD of an application to make
a market in any securities; and,
C. No payments made herein to LDWD are for the purpose of affecting
the price of any security or influencing any market-making
functions, including but not limited to bid/ask quotations,
initiation and termination of quotations, retail securities
activities, or for the submission of any application to make a
market.
7. CONFIDENTIALITY.
7.1 LDWD and Contractor each agree to provide reasonable security
measures to keep information confidential where release may be detrimental
to their respective business interests. LDWD and Contractor shall each
require their employees, agents, affiliates, subcontractors, other
licensees, and others who will have access to the information through LDWD
and Contractor respectively, to first enter into appropriate
non-disclosure Agreements requiring the confidentiality contemplated by
this Agreement in perpetuity.
7.2 LDWD will not, either during its engagement by the Contractor
pursuant to this agreement or at any time thereafter, disclose, use or
make known for its or another's benefit, any confidential information,
knowledge, or data of the Contractor or any of its affiliates in any way
acquired or used by LDWD during its engagement by the Contractor.
Confidential information, knowledge or data of the Contractor and its
affiliates shall not include any information which is or becomes generally
available to the public other than as a result of a disclosure by LDWD or
its representatives.
8. MISCELLANEOUS PROVISIONS.
8.1 Amendment and Modification. This Agreement may be amended, modified
and supplemented only by written Agreement of LDWD and Contractor.
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8.2 Waiver of Compliance. Any failure of LDWD, on the one hand, or Contractor,
on the other hand, to comply with any obligation, agreement or condition herein
may be expressly waived in writing, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
8.3 Expenses; Transfer Taxes, Etc. Whether or not the transaction, if any,
contemplated by this Agreement is consummated, LDWD agrees that all fees and
expenses incurred by LDWD, in connection with this Agreement shall be borne by
LDWD, and Contractor agrees that all fees and expenses incurred by Contractor
in connection with this Agreement shall be borned by Contractor, including,
without limitation, as to LDWD or Contractor, all fees of counsel and
accountants.
8.4 Other Business Opportunities. Except as expressly provided in this
Agreement, each party hereto shall have the right independently to engage in
and receive full benefits from business activities. In case of business
activities which would be competitive with the other party, notice shall be
given prior to this Agreement or, if such activities are proposed, within 15
days prior to engagement therein. The doctrines of "corporate opportunity" or
"business opportunity" shall not be applied to any other activity, venture, or
operation of either party.
8.5 Compliance with Regulatory Agencies. Each party agrees that all actions,
direct or indirect, taken by it and its respective agents, employees and
affiliates in connection with this Agreement and any financing or underwriting
hereunder shall conform to all applicable Federal and state securities laws.
8.6 Notices. Any notices to be given hereunder by any party to the other may be
effected by personal delivery in writing or by mail, registered or certified,
postage prepaid, with return receipt requested. Mailed notices shall be
addressed to the "Contact Person" at the addresses appearing in the introductory
paragraph of this Agreement, but any party may change his address by written
notice in accordance with this subsection. Notices delivered personally shall be
deemed communicated as of actual receipt; mailed notices shall be deemed
communicated as of five (5) days after mailing.
8.7 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
right, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties, except
by operation of law.
8.8 Delegation. Neither party shall delegate the performance of its duties
under this Agreement without the prior written consent of the other party.
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8.9 Publicity. Neither LDWD nor Contractor shall make or issue, or cause
to be made or issued, any announcement or written statement concerning
this Agreement or the transaction contemplated hereby for dissemination to
the general public without the prior consent of the other party. This
provision shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any federal or
state governmental agency, except that the parties shall agree concerning
the timing and consent of such announcement before such announcement is
made.
8.10 Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
laws of the State of Texas, without regard to its conflict of law
doctrine. Contractor and LDWD agree that if action is instituted to
enforce or interpret any provision of this Agreement the jurisdiction and
venue shall be in Dallas County, Texas.
8.11 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.
8.12 Headings. The heading of the Sections of this Agreement are inserted
for convenience only and shall not constitute a part hereto or affect in
any way the meaning or interpretation of this Agreement.
8.13 Entire Agreement. This Agreement, including any Exhibits hereto, and
the other documents and certificates delivered pursuant to the terms
hereto, set forth the entire Agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and superseded
all prior Agreements, promise, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto.
8.14 Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or corporation other than
the parties hereto and their successors or assigns, any rights or remedies
under or by reason of this Agreement.
8.15 Attorneys' Fees and Costs. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs, in addition to any other
relief to which that party may be entitled. This provision shall be
construed as applicable to the entire Agreement.
8.16 Survivability. If any part of this Agreement is found, or deemed by a
court of competent jurisdiction to be invalid or unenforceable, that part
shall be severable from the remainder of this Agreement.
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8.17 Further Assurances. Each of the parties agrees that it shall from
time to time take such actions and execute such additional instruments as
may be reasonably necessary or convenient to implement and carry out the
intent and purpose of this Agreement.
8.18 Right to Data After Termination. After termination of this Agreement
each party shall be entitled to copies of all information acquired
hereunder as of the date of termination and not previously furnished to it.
8.19 Relationship of the Parties. Nothing contained in this Agreement
shall be deemed to cause either party to become the partner of the other,
the agent or legal representative of the other, nor create any fiduciary
relationship between them, except as otherwise expressly provided herein.
It is not the intention of the parties to create nor shall this Agreement
be construed to create any commercial relationship or other partnership.
Neither party shall have any authority to act for or to assume any
obligation or responsibility on behalf of the other party, except as
otherwise expressly provided herein. The rights, duties, obligations and
liabilities of the parties shall be several not Joint nor collective. Each
party shall be responsible only for its obligations as herein set out and
shall be liable only for its share of the costs and expenses as provided
herein.
8.20 No Authority to Obligate the Contractor. Without the consent of the
Board of Directors of the Contractor, LDWD shall have no authority to
take, nor shall it take, any action committing or obligating the
Contractor in any manner, and it shall not represent itself to others as
having such authority.
9. ARBITRATION. WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE
UNDERSIGNED HEREBY ACKNOWLEDGE AND AGREE THAT:
A. ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
B. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
C. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDING;
D. THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
E. THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
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INDUSTRY; AND
F. THIS ARBITRATION AGREEMENT IS SPECIFICALLY INTENDED TO INCLUDE ANY AND ALL
STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY.
G. ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN THE CONTRACTOR, XXXXX
XXXX OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS,
ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER PERSON OR
ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF THIS
AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH
LITIGATION.
H. THE UNDERSIGNED CONTRACTOR HEREBY AGREES TO SUBMIT THE DISPUTE FOR
RESOLUTION TO EITHER THE AMERICAN ARBITRATION ASSOCIATION, IN DALLAS,
TEXAS, OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., IN DALLAS,
TEXAS, WHICHEVER ASSOCIATION MAY ASSERT JURISDICTION OVER THE DISPUTE,
WITHIN FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST TO DO SO FROM ANY OF
THE AFORESAID PARTIES.
I. IF ANY PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON REQUEST, THEN
THE REQUESTING PARTY MAY ITSELF COMMENCE AN ARBITRATION PROCEEDING, BUT IS
UNDER NO OBLIGATION TO DO SO.
J. ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL TAKE PLACE IN
DALLAS, DALLAS COUNTY, TEXAS AND THE FEDERAL ARBITRATION ACT SHALL GOVERN
THE PROCEEDING AND ALL ISSUES RAISED BY THIS AGREEMENT TO ARBITRATE.
K. IF ANY PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO RESIST
ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR SHALL
UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY ARBITRATION FORUM LOCATED IN
DALLAS, DALLAS COUNTY, TEXAS, OVER ANY MATTER WHICH IS THE SUBJECT OF THIS
AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE
LOSING PARTY ITS LEGAL FEES AND ANY OUT-OF-POCKET EXPENSES INCURRED IN
CONNECTION WITH THE DEFENSE OF SUCH LEGAL PROCEEDING OR ITS EFFORTS TO
ENFORCE ITS RIGHTS TO ARBITRATION AS PROVIDED FOR HEREIN.
L. EACH PARTY WILL SIGN ANY REQUIRED NASD UNIFORM SUBMISSION AGREEMENT OR THE
APPLICABLE PAPERWORK FOR THE AMERICAN ARBITRATION ASSOCIATION, AT THE TIME
ANY DISPUTE IS SUBMITTED FOR ARBITRATION WHICHEVER ONE IS APPLICABLE.
M. THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING
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FINAL AND CONCLUSIVE AND AGREE TO ABIDE THEREBY.
N. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGEMENT AND
EXECUTION FOR COLLECTION.
10. TERM OF AGREEMENT AND TERMINATION. This Agreement shall be effective upon
execution, shall continue for one year unless terminated sooner by LDWD or
contractor, upon giving to the other party 15 days written notice, after
which time this Agreement is terminated. However, this agreement cannot be
terminated by either party for 90 days. LDWD shall be entitled to the
finders fees described in this Agreement for funding or underwriting
commitments entered into by Contractor's client within one year after the
termination of this Agreement if said funding or underwriting was the
result of LDWD efforts prior to the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CONTRACTOR: Wanderlust Interactive, Inc.
By: /s/ XXX XXXXX
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Mr. Xxx Xxxxx, III, CEO, CFO
LDWD: XXXXX XXXX SECURITIES, INC.
By: /s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx, President
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ADDENDUM
ADDENDUM TO INVESTMENT BANKING AGREEMENT
1. LOCKUP AND RESTRICTED SHARES. Contractors shall notify LDWD of all lockups
and restrictions on stocks, their ownership and their terms. LDWD shall
receive written notice of any changes hereto three business days before the
changes occur.
2. SALARY FREEZE. Contractor shall communicate to LDWD the salary and
compensation levels of all officers and directors and shall notify LDWD of
any changes prior to their occurrence.
3. DTC REPORTS. The Contractor shall provide DTC reports weekly to LDWD, when
available.
4. BROKERAGE SERVICES. Contractor, its officers, directors, and other
"insiders" shall each have an opportunity to open an account at LDWD and
have all of their shares of any public company deposited into such account,
so that LDWD may become these individuals primary broker as per paragraph 1
above.
5. CONSULTING RETAINER FEE. There shall be paid a 50,000 (Fifty Thousand)
shares retainer for twelve months, service payable with the signing of this
agreement. These shares shall be fully vested and carry the same
registration rights as the other shares.
6. SHARES. The stock shares granted to LDWD from Contractor, Pursuant to
paragraph 4.1 of the agreement are: (as of the date of this agreement)
amount of 100,000 (One Hundred Thousand) Shares of the Contractor's common
stock (hereinafter the "Shares"). LDWD's ownership interest in the shares
shall vest immediately and shall be paid immediately upon execution of this
Agreement.
7. WARRANTS. The warrants granted to LDWD from Contractor are:
50,000 (Fifty Thousand) Warrants on the Common Stock shares of the
Contractor, which shall vest immediately upon the execution of this
agreement. Each warrant shall entitle LDWD to purchase one common share at
a price of $1-1/4 per share, exercisable at anytime beginning on the date
of mutual execution of this Agreement. The warrant agreement shall include
mutually agreeable and commercially acceptable terms and conditions with
respect to the mechanics of exercise and adjustments resulting from changes
in the contractor's capital structure after the date of this Agreement.
The Warrants shall be subject to the following terms:
A. EXERCISE PRICE. The exercise price shall be fixed at $1-1/4. Each
warrant shall be convertible upon exercise into one share of common
stock.
B. TERM. The term shall be for a period of 3 years from the effective
date of this agreement.
8. PROVISIONS GOVERNING THE SHARES. The following provisions are applicable
to the Shares issued to LDWD pursuant to this agreement:
A. All shares and warrants shall be Rule 144 shares (subject to demand
registration rights within 180 days) and subject to piggyback
registration rights as selling shareholders with any public offering.
LDWD shall register all, a portion, or none of its shares along with
Contractor's shareholders. All costs of registration shall be borne by
Contractor.
Investment Banking Agreement - Page 13 of 15 Pages - Initialed _____ _____
14
B. Any of the shares and warrants may be sold anytime and Contractor
agrees to deliver to LDWD such registered shares that are not
restricted, as defined or interpreted under Rule 144 of the
Securities Exchange Act of 1933, and are freely tradable.
C. Contractor shall provide at the time of exercise of this Agreement,
paperwork for LDWD to have (as Attached "Exhibits I, II and III").
I. "Stock Certificates" of ownership of all shares with duly noted
non-registration exemption statement, issued in various names.
II. "Registration Rights Agreement" to the above mentioned stock, and
III. "[Form of] Warrant Agreement" containing grant of warrants.
9. DATE OF PAYMENTS. The business advisory retainer fee and any other fees
resulting from this relationship shall be due immediately beginning with
the month of execution of this agreement. The consulting retainer fee shall
be due in advance on the first of each month and shall be considered in
arrears if not paid by the 10th of the month.
10. FINANCING FEE FORMULA. LDWD agrees to provide Contractor with a forum for
future financing with LDWD or other firms under the following formula of
fees to be paid to LDWD which will be delineated under a separate
"Placement Agent Selling Agreement":
A. 3% non-accountable expense allowance (with expenses enumerated).
B. 2% dealer reallowance (to be shared with other members of the
"Selling Group").
C. 10% sales concession or commission (to be paid as brokers' gross
commission).
D. Other fees and terms will be negotiated according to a written "term
sheet".
Notwithstanding anything in the Addendum or the Agreement to the contrary the
compensation referenced in this paragraph shall not be paid in addition to the
fees described in Paragraph 4.5 of this agreement, and it is expressly agreed
that any fees payable pursuant to said Paragraph 4.5 shall be offset against
any investment banking fees otherwise payable pursuant to this paragraph (and
vice versa), but will not apply to placement agent fees. LDWD shall not be paid
placement agent fees that may become due to other Broker Dealer for sales of
Securities.
11. TERMINATION. This agreement may be terminated by either party for any
reason by giving a 15 days notice, send by certified mail. Neither party may
terminate the agreement during the first 90 days of this agreement. All fees up
to the date of termination will be valid and payable to LDWD by Contractor. In
addition, if the agreement is terminated, LDWD shall return the common stock
paid as compensation for its services in proportion to the length of time left
of the 12 months term of this agreement. Notice of termination, by either
party, shall include confirmation of the amount of stock, if any, due to be
returned to Contractor. Once Contractor has send written notice of Contractor's
agreement with LDWD on the appropriate number of shares that LDWD is entitled
to and that Contractor will deliver, the shares shall be delivered within 15
days. Upon notice of termination, both LDWD and Contractor shall promptly
confirm receipt of notice in writing. Any dispute over the amount of stocks to
be returned must be settled within 15 days of notice of termination. The amount
of stock, if any, shall be calculated based on a 365 day calendar year. LDWD
agrees to allow Contractor to cancel the appropriate number of shares after
Contractor has received written confirmation of the amount of shares from LDWD.
LDWD also agrees to submit the appropriate certificates to the transfer agent
upon reception and no later than 15 days from the date of receipt of proper
notice of termination.
Investment Banking Agreement - Page 14 of 15 Pages - Initialed _____ _____
15
EXHIBIT A
DUTIES OF XXXXX XXXX SECURITIES, INC.
NO ADDITIONAL DUTIES OR FEES HAVE BEEN AGREED TO UNLESS THIS PAGE IS AMENDED AND
SIGNED BY BOTH PARTIES.
Investment Banking Agreement - Page 15 of 15 Pages - Initialed _____ _____
16
ADDENDUM
This Addendum entered into this 29th day of June 1998, by and between
Adrenalin Interactive, Inc. (formerly Wunderlust Interactive, Inc.) ("Company")
and Xxxxx Xxxx Securities, Inc. ("LDWD").
Whereas, the Company and LDWD entered into an Investment Banking
Agreement on January 14, 1998 ("Agreement").
Whereas, the Agreement provided that LDWD shall receive as compensation
for services, 150,000 shares of the Company's common stock, and 50,000 common
share warrants, and
Whereas, LDWD have rendered and will continue to render services in
excess of what was contemplated thereby entitling LDWD to additional fees.
NOW, THEREFORE, in consideration of the premises as set forth in this
Addendum and the Agreement the parties hereby agree as follows:
1. Pursuant to Section 4.2 of the Agreement the parties
agree that LDWD shall be paid additional fees in the
form of One Hundred Thousand (100,000) shares of the
Company's common stock.
2. The shares shall become payable immediately upon this
Addendum and shall be subject to the same turns and
conditions of the Agreement and "Addendum" with respect
to any shares issued thereto.
If the Company: Xxx Xxxxx
Adrenalin Interactive, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
If the LDWD: Xxxxx X. Xxxxxxxx, President
Xxxxx Xxxx Securities, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Either party may change its address for notice by giving notice to the
other party as set forth above.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officer, effective the day and
year first above written.
ADRENALIN INTERACTIVE, INC. XXXXX XXXX SECURITIES, INC.
By: /s/ XXX XXXXX By: /s/ XXXXX XXXXXXXX
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