Exhibit 99.3
December 12, 2003
Obsidian Enterprises, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
AGREEMENT
This Agreement sets forth the terms and conditions under which Innisfree M&A
Incorporated ("Innisfree") has been retained by Obsidian Enterprises, Inc.
("OEI") to provide consulting and analytic services and to act as Information
Agent in connection with its proposed acquisition of Net Perceptions, Inc. (the
"Offer").
1. The term of this Agreement shall be 90 days from the date of its execution,
unless extended further by OEI. During the term of any such extension, OEI
will pay Innisfree $2,500 per month.
2. In connection with this Agreement, OEI will pay Innisfree a fee of $25,000
("Fixed Fee"), payable upon execution of the Agreement. In addition, if
Innisfree is requested to make calls to or receive calls from individual
recordholders or non-objecting beneficial owners ("NOBO's"), OEI will pay
Innisfree $5.00 per such call, which amount includes all line charges.
Notwithstanding the foregoing, the fees for the first 500 incoming calls
are included in the Fixed Fee. In the event of a proxy contest or consent
solicitation, OEI agrees to retain Innisfree, and Innisfree agrees to
represent OEI, at fees to be mutually determined.
3. In connection with Innisfree's services under this Agreement, OEI agrees to
reimburse Innisfree, pay directly, or, where requested by Innisfree in
special situations, advance sufficient funds to Innisfree for payment of
the following costs and expenses:
a. Freight and postage expenses incurred in connection with the
distribution of Offer documents;
b. Expenses Innisfree incurs in working with your agents or other parties
involved in the Offer, including any charges for bank threshold lists,
data processing, directory assistance, facsimile transmissions or
other forms of electronic communication;
c. Expenses Innisfree incurs at OEI's request or for OEI's convenience,
including those incurred in the preparation and placement of newspaper
ads including typesetting and space charges, printing additional
and/or supplemental material, copying, and travel;
d. Fees and expenses authorized by OEI resulting from extraordinary
contingencies which may arise during the course of the Offer.
In instances where Innisfree incurs and pays such costs and expenses as
listed above to third parties on behalf of OEI, OEI agrees to pay
Innisfree a service fee of five percent of such costs and expenses.
4. Innisfree agrees to review and pay on OEI's behalf charges rendered by
banks, brokers or their agents for forwarding Offer documents to beneficial
owners. To ensure that sufficient funds are available for prompt payment of
such charges, OEI agrees to advance monies for the anticipated charges
prior to the distribution of such material. In addition, OEI agrees to pay
Innisfree a service fee of $5.00 for each invoice relating to such charges
paid on OEI's behalf.
5. Innisfree hereby agrees not to make any representations not included in the
Offer documents.
6. OEI represents to Innisfree that it will comply with, and Innisfree
represents to OEI that it will comply with, applicable requirements of law
relating to the performance of services under this Agreement.
7. OEI agrees to indemnify and hold Innisfree harmless against any loss,
damage, expense (including, without limitation, legal and other related
fees and expenses), liability or claim arising out of Innisfree's
fulfillment of the Agreement (except for any loss, damage, expense,
liability or claim resulting out of Innisfree's own negligence or
misconduct). At its election, OEI may assume the defense of any such
action. Innisfree hereby agrees to advise OEI of any such liability or
claim promptly after receipt of the notice thereof; provided however, that
Innisfree's right to indemnification hereunder shall not be limited by its
failure to promptly advise OEI of any such liability or claim, except to
the extent that OEI is prejudiced by such failure. The indemnification
contained in this paragraph will survive the term of the Agreement.
8. Innisfree agrees to preserve the confidentiality of all non-public
information provided by OEI or its agents for its use in providing services
under this agreement, or information developed by Innisfree based upon such
non-public information.
If the above is agreed to by you, please sign and return the enclosed duplicate
of this Agreement to Innisfree M&A Incorporated, Attention: Xxxxxxxx X.
Xxxxxxxx, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX, 00000.
ACCEPTED:
Obsidian Enterprises, Inc. INNISFREE M&A INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
Co-Chairman
Title: Chairman and Chief
Executive Officer
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Date December 15, 2003
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