1
EXHIBIT 10.23
[Confidential treatment has been granted or requested with respect
to portions of this exhibit, and such portions have been replaced
with "**". Such confidential portions have been deleted and
separately filed with the Securities and Exchange Commission
pursuant to Rule 24b-2.]
December 4, 1996
Xx. Xxxxx Xxxxxxxx
ModaCAD, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
RE: Investment Banking Consulting Agreement
Dear Xx. Xxxxxxxx:
This will confirm the arrangements, terms and conditions pursuant to
which Shamrock Partners, Ltd. (the "Consultant") has been retained to serve as a
financial consultant and advisor to ModaCAD, Inc. (the "Company"), on a
nonexclusive basis for a period of ** commencing December 4, 1996, and **. The
undersigned hereby agrees to the following terms and conditions:
1. Duties of Consultant. Consultant shall, at the request of the
Company, upon reasonable notice, render the following services to
the Company from time to time:
a. Consulting Services. Consultant will provide such
financial consulting services and advice pertaining to
the Company's business affairs as the Company may from
time to time reasonably request. Without limiting the
generality of the foregoing, Consultant will assist the
Company in developing, studying and evaluating
financing, merger and acquisition proposals, prepare
reports and studies thereon when advisable, and assist
in negotiations and discussions pertaining thereto. This
Agreement is not a contract for listing services;
however, nothing in this agreement will prohibit
Shamrock from listing or making a market in the
Company's securities in the OTC markets, which markets
might include the NASDAQ Small-Cap Market.
b. Financing. Consultant will assist and represent the
Company in obtaining both short and long-term financing,
if requested by the Company. The Consultant will be
entitled to additional compensation under such terms as
may be agreed to by the parties.
c. Wall Street Liaison. Consultant will, when appropriate,
arrange meetings between representatives of the Company
and individuals and financial institutions in the
investment community, such as security analysts,
portfolio managers and market makers.
The services described in this Section 1 shall be rendered by
Consultant without any direct supervision by the Company and at such time and
place and in such manner (whether by conference,
2
telephone, letter or otherwise) as Consultant may determine. Consultant shall,
however, keep the Company fully advised on a current basis as to services being
performed and, upon request by the Company, shall refrain from or discontinue
performance of any service which may be specified by the Company.
2. Term. This Agreement shall continue for a period of ** from the
date hereof (the "Full Term").
3. Compensation. As compensation for Consultant's services hereunder,
the Company agrees to grant to Consultant **. ** from the date of
this Agreement, and shall be in the form attached hereto as Exhibit
A.
4. Available Time. Consultant shall make available such time as it, in
its sole discretion, shall deem appropriate for the performance of
its obligations under this Agreement. If at any time the Company
believes that Consultant is failing to perform its obligations under
this Agreement or is not devoting sufficient time to such
performance, the Company shall notify Consultant in writing of such
belief, which notice shall specify the details underlying such
belief. The parties shall attempt in good faith to resolve any
differences of opinion with respect thereto in the soonest
practicable time.
5. Relationship. Nothing herein shall constitute Consultant as an
employee or agent of the Company, except to such extent as might
hereinafter be agreed upon for a particular purpose. Except as might
hereafter be expressly agreed upon in writing, Consultant shall not
have the authority to obligate or commit the Company in any manner
whatsoever.
6. Confidentiality. Except in the course of the performance of its
duties hereunder, Consultant agrees that it shall not disclose any
trade secrets, know-how, or other proprietary information not in the
public domain learned as a result of this Agreement unless and until
such information becomes generally known. The terms of this Section
6 shall survive the termination or expiration of this Agreement.
7. Assignment. This Agreement shall not be assignable by any party **
to related parties without prior notification to the Company. **
8. Compliance with Laws. In performing services for the Company
pursuant to this Agreement, Consultant shall comply with all
applicable laws, including, but not limited to, federal and state
securities laws. Consultant represents and warrants to the Company
that Consultant has, or shall obtain prior to any performance of
services hereunder, any and all licenses, registrations and permits
necessary for the performance of Consultant's services pursuant to
this Agreement.
9. Cross Indemnification. Both the Consultant and the Company agree to
indemnify, and hold harmless each other, their officers, directors,
employees, agents and shareholders from and against any and all
claims, losses, damages, costs (including reasonable attorneys' fees
and costs) and expenses arising directly or indirectly from services
and information provided under the terms of this Agreement, or any
breach of agreements or representations set forth herein. The
covenants, agreements and terms set forth in this Section 8 shall
survive termination or expiration of this Agreement.
3
10. Termination. The Company shall have the right to terminate this
Agreement at any time, for any reason. In any event, the Consultant
will at all times be **.
Agreed upon this 4th day of December, 1996.
MODACAD, INC. SHAMROCK PARTNERS, LTD.
/s/ Xxxxx Xxxxxxxx /s/ Xxxxx X. Xxxxx
----------------------------------- ----------------------------
Xx. Xxxxx Xxxxxxxx, President Xxxxx X. Xxxxx, President
4
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANTS TO PURCHASE
** SHARES OF COMMON STOCK OF
MODACAD, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF CALIFORNIA
Void after **
THE WARRANTS evidenced by this certificate have been issued for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
THIS CERTIFICATE evidences the right of Shamrock Partners, Ltd.
("Holder") to purchase, for the Warrant Price (as defined below), ** shares of
Common Stock (the "Shares"), of ModaCAD, Inc., a California corporation (the
"Company"), subject to the terms and conditions hereinafter set forth.
1. Term of Warrants. The Warrants may be exercised only during the
period commencing ** (the "Warrant Term"), and may be exercised only in
accordance with the terms and conditions hereinafter set forth.
2. Exercise of Warrants.
(a) Right to Exercise. The Warrants shall vest and become
exercisable upon commencement of the Warrant Term and may be exercised in whole
or in part at any time or from time to time during the Warrant Term.
(b) Method of Exercise; Payment; Issuance of New Warrants. The
Warrants may be exercised by Holder, in whole or in part, by the surrender of
this Certificate, properly endorsed, at the principal office of the Company, and
by the payment to the Company by certified or cashier's check of the Warrant
Price. Each Warrant shall be exercisable for one Share of Common Stock. In the
event of any exercise of the Warrants, certificates for the Shares so purchased
shall be delivered to Holder within a reasonable time after the Warrants shall
have been so exercised, and unless the Warrants have expired, a new certificate
representing the right to purchase the number of Shares, if any, with respect to
which this Certificate shall not then have been exercised shall also be issued
to Holder within such time. All such new certificates shall be dated the date
hereof and shall be identical to this Certificate except as to the number of
Shares issuable pursuant thereto. The Company shall pay all documentary, stamp
or other
5
transactional taxes (other than transfer taxes) attributable to the issuance or
delivery of shares of Common Stock of the Company upon exercise of the Warrants.
(c) Restrictions on Exercise. The Warrants may not be exercised if
the issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. As
a condition to the exercise of the Warrants, the Company may require Holder to
make such representations and warranties to the Company as may be required by
applicable law or regulation.
3. Stock Fully Paid; Reservations of Shares. The Company covenants and
agrees that all Shares will, upon issuance and payment in accordance herewith,
be fully paid, validly issued and nonassessable. The Company further covenants
and agrees that during the Warrant Term the Company will at all times have
authorized and reserved for the purpose of the issue upon exercise of the
Warrants at least the maximum number of shares of the Company's Common Stock as
are issuable upon the exercise of the Warrants.
4. Adjustment of Purchase Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of the Warrants and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) Consolidation, Merger or Reclassification. If the Company at any
time while the Warrants remain outstanding and unexpired shall consolidate with
or merge into any other corporation, or sell all or substantially all of its
assets to another corporation, or reclassify or in any manner change the
securities then purchasable upon the exercise of the Warrants (any of which
shall constitute a "Reorganization"), then lawful and adequate provision shall
be made whereby this Certificate shall thereafter evidence the right to purchase
such number and kind of securities and other property as would have been
issuable or distributable on account of such Reorganization upon or with respect
to the securities which were purchasable under the Warrants immediately prior to
the Reorganization. The Company shall not effect any such Reorganization unless
prior to or simultaneously with the consummation thereof the successor
corporation (if other than the Company) resulting from such Reorganization shall
assume by written instrument executed and mailed or delivered to Holder, at the
last address of Holder appearing on the books of the Company, the obligation to
deliver to Holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, Holder may be entitled to purchase.
Notwithstanding anything in this Section 4(a) to the contrary, the prior two
sentences shall be inoperative and of no force and effect and those Warrants
which are unexercised shall expire on the completion of such Reorganization if
upon the completion of any such Reorganization the shareholders of the Company
immediately prior to such event do not own at least 50% of the equity interest
of the entity resulting from such Reorganization, the notice required by Section
4(e) hereof has been duly given and the Warrants were fully exercisable at the
time such notice was provided.
(b) Subdivision or Combination of Shares. If the Company at any time
while the Warrants remain outstanding and unexpired shall subdivide or combine
its Common Stock, the Warrant Price shall be adjusted to that price determined
by multiplying the Warrant Price in effect immediately prior to such subdivision
or combination by a fraction (i) the numerator of which shall be the total
number of shares of Common Stock outstanding immediately prior to such
subdivision or combination and (ii) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such subdivision
or combination.
6
(c) Certain Dividends and Distributions. If the Company at
any time while the Warrants are outstanding and unexpired shall take a record of
the holders of its Common Stock for the purpose of:
(i) Stock Dividends. Entitling them to receive
a dividend payable in, or other distribution without consideration of, Common
Stock, then the Warrant Price shall be adjusted to that price determined by
multiplying the Warrant Price in effect immediately prior to each dividend or
distribution by a fraction (A) the numerator of which shall be the total number
of shares of Common Stock outstanding immediately prior to such dividend or
distribution, and (B) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution; or
(ii) Distribution of Assets, Securities, etc.
Making any distribution without consideration with respect to its Common Stock
(other than a cash dividend) payable otherwise than in its Common Stock, Holder
shall, upon the exercise of the Warrants, be entitled to receive, in addition to
the number of Shares receivable thereupon, and without payment of any additional
consideration therefor, such assets or securities as would have been payable to
him as owner of that number of Shares receivable by exercise of the Warrants had
he been the holder of record of such Shares on the record date for such
distribution, and an appropriate provision therefor shall be made a part of any
such distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in
the Warrant Price pursuant to Subsections (b) or (c) (i) of this Section 4, the
number of Shares purchasable hereunder shall be adjusted to that number
determined by multiplying the number of such Shares purchasable upon the
exercise of the Warrants immediately prior to such adjustment by a fraction, the
numerator of which shall be the Warrant Price immediately prior to such
adjustment and the denominator of which shall be the Warrant Price immediately
following such adjustment.
(e) Notice. In case at any time:
(i) The Company shall pay any dividend payable
in stock upon its Common Stock or make any distribution, excluding a cash
dividend, to the holders of its Common Stock;
(ii) The Company shall offer for subscription pro
rata to the holders of its Common Stock any additional shares of stock of any
class or other rights;
(iii) There shall be any reclassification of the
Common Stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to, another corporation; or
(iv) There shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder at
least 10 days' prior written notice (or, in the event of notice pursuant to
Section 4(e)(iii), at least 30 days' prior written notice) of the date on which
the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect to any such reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up. Such notice in accordance with the
foregoing clause shall also specify, in the case of any such dividend,
distribution or subscription rights,
7
the date on which the holders of Common Stock shall be entitled thereto, and
such notice in accordance with the foregoing clause shall also specify the date
on which the holders of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the case
may be. Each such written notice shall be given by first-class mail, postage
prepaid, addressed to Holder at the address of Holder as shown on the books of
the Company.
(f) No Change in Certificate. The form of this Certificate need not
be changed because of any adjustment in the Warrant Price or in the number of
Shares and Additional Warrants purchasable on its exercise. The Warrant Price or
the number of Shares and Additional Warrants shall be considered to have been so
changed as of the close of business on the date of adjustment.
5. Fractional Shares. No fractional Shares will be issued in
connection with any subscription hereunder but, in lieu of such fractional
Shares, the Company shall make a cash payment therefor upon the basis of the
fair market value of the Shares.
6. Restrictions on Transfer. The Warrants are restricted from sale,
transfer, assignment or hypothecation by operation of law. The Warrants have not
been registered under the Act or any applicable state securities laws, and may
not be offered for sale, sold, transferred, pledged or hypothecated without an
effective registration statement under the Act and under any applicable state
securities law, or an opinion of counsel, satisfactory to the Company, that an
exemption from such registration is available. The Holder understands that
because the Warrants are not registered, the Holder must hold the Warrants
indefinitely unless they are registered under the Act and any applicable state
securities laws or must obtain exemptions from registration. The Holder
represents and warrants that the Holder is purchasing the Warrants for his own
account for investment and not with the view to distribution, assignment, resale
or other transfer of the Warrants. Except as specifically stated herein, no
other person has a direct or indirect beneficial interest in the Warrants.
7. No Rights as Shareholder. Holder, as holder of the Warrants, shall
not be entitled to vote or receive dividends or be considered a shareholder of
the Company for any purpose, nor shall anything in this Certificate be construed
to confer on Holder, as such, any rights of a shareholder of the Company or any
right to vote, give or withhold consent to any corporate action, to receive
notice of meetings of shareholders, to receive dividends or subscription rights
or otherwise.
8. Definitions. As used in this Certificate:
(a) "Warrants" shall mean the rights evidenced by this
Certificate.
(b) "Warrant Price" shall mean ** per share.
9. Notices. All demands, notices, consents and other communications to
be given hereunder shall be in writing and shall be deemed duly given when
delivered personally or five days after being mailed by first class mail,
postage prepaid, properly addressed, if to the Company at ModaCAD, Inc., 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and if to Holder at 000 Xxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000. The Company and Holder may change
such address at any time or times by notice hereunder to the other.
8
10. Amendments; Waivers, Terminations, Governing Law; Headings. The
Warrants and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought. The Warrants shall
be governed by and construed and interpreted in accordance with the laws of the
State of California. The headings in this Certificate are for convenience of
reference only and are not part of the Warrants.
Dated as of December __, 1996.
MODACAD, INC.
By:___________________________
Name:_________________________
Title:________________________
Attest:
9
MODACAD, INC.
SUBSCRIPTION FORM
(To be completed and signed only upon exercise of the Warrants)
TO: ModaCAD, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Secretary
The undersigned, the holder and registered owner of the attached
Warrants, hereby irrevocably and unconditionally elects to exercise such
Warrants and to purchase * shares of ModaCAD, Inc. Common Stock, pursuant to the
terms and conditions of the Warrants, and herewith tenders a check in the amount
of $_________ in full payment of the purchase price for such shares and
warrants, and requests that the certificate(s) for such shares and warrants be
issued in the name of and delivered to:
(Please print name and address)
____________________________________
____________________________________
____________________________________
____________________________________
Dated: __________________ SHAMROCK PARTNERS, LTD.
By:_________________________
Name:______________________
Title:_______________________
*Insert here the number of shares called for on the face of the
Warrants (or in the case of partial exercise, that portion as to which the
Warrants are being exercised), without making any adjustment for additional
Common Stock or any other securities or property which, under the adjustment
provisions of the Warrants, may be deliverable upon exercise.
