Ex-99.2
Amended and Restated Placement Agency Agreement
March 22, 2000
The Zanett Securities Corporation
Tower 49, 25th Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
This agreement ("Agreement") will confirm that The Netplex Group, Inc., a
New York corporation (the "Company"), has retained The Zanett Securities
Corporation ("Zanett" or the "Placement Agent") to assist the Company, during
the thirty (30) day period commencing on the date hereof (the "Term"), on a
"best-efforts" basis, in connection with the placement of up to 1,500 units (the
"Units") at a price of $1,000 per Unit, each Unit consisting of (i) a prepaid
common stock purchase warrant (the "Prepaid Warrants") which entitles the holder
thereof to acquire up to $1,000 of the Company's common stock, par value $.001
per share (the "Common Stock"), on the terms and subject to the conditions
contained in such Prepaid Warrants (or an aggregate of up to $1,500,000 of
Common Stock based on the sale of 1,500 Units), and (ii) additional warrants
(the "Incentive Warrants") to acquire Seventy-Eight Thousand (78,000) shares of
Common Stock. The shares of Common Stock issuable upon exercise of or otherwise
pursuant to the Prepaid Warrants and the Incentive Warrants are referred to
herein as the "Warrant Shares." The Prepaid Warrants, the Incentive Warrants and
the Warrant Shares are collectively referred to herein as the "Securities." The
Company agrees that, during the Term, all conversations, negotiations, documents
and other materials exchanged between the Company and the Placement Agent shall
not be disclosed or released to any third party without the prior written
consent of Zanett. The Company acknowledges that certain of the aforementioned
Securities may be purchased by affiliates of Zanett.
The Units are being offered to "accredited investors" in accordance with
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). Each prospective investor ("Investor") subscribing to
purchase the Units will be required to deliver, among other things, a Securities
Purchase Agreement between the Company and the Investor (the "Securities
Purchase Agreement") in form and substance reasonably satisfactory to Zanett and
the Company, representing and warranting, among other things, that such Investor
is an "accredited investor" as such term is defined in Regulation D.
Contemporaneous with the execution and delivery of the Securities Purchase
Agreement, the Investors shall execute and deliver a Registration Rights
Agreement (the "Registration Rights Agreement") in form and substance reasonably
satisfactory to Zanett and the Company pursuant to which the Company will agree
to provide the Investors certain registration rights under the Securities Act
with respect to the Securities.
The Securities Purchase Agreement, the Prepaid Warrants, the Incentive
Warrants and the Registration Rights Agreement are referred to herein
collectively as the "Offering Documents." The offering of Units described in the
Offering Documents is referred to herein as the "Offering."
1. Appointment of Placement Agent. Zanett is hereby appointed Placement Agent
of the Company for the purposes of assisting the Company in finding qualified
Investors to participate in the Offering. On the basis of the representations
and warranties and subject to the terms and conditions contained herein, Zanett
hereby accepts such agency and agrees to assist the Company in finding qualified
Investors to participate in the Offering. Zanett's agency hereunder is not
terminable by the Company except upon termination of the Offering. Upon
termination of the Offering, all subscriptions received, if any, shall be
returned to Investors.
1. Closing- Placement Fee and Warrant- Expenses.
2.
(a) Closing. Upon satisfaction of the conditions to closing contained in the
Securities Purchase Agreement, the closing (the "Closing") of the purchase and
sale of the Units shall take place at the offices of Klehr, Harrison, Xxxxxx,
Xxxxxxxxx & Xxxxxx, LLP or such other mutually agreed place, at such time and
date (the "Closing Date") as may be agreed upon between the Placement Agent, the
Investors and the Company.
(b)
(c) Procedures at Closing. Counsel for the Placement Agent shall act as escrow
agent for the Closing (the "Escrow Agent"). At each Closing:
(d)
(i) The Company shall deliver to the Escrow Agent, on behalf of the Placement
Agent and the Investors, an opinion of the Company's outside legal counsel,
dated as of the applicable Closing Date, in such form as may be reasonably
acceptable to the Placement Agent and its counsel.
(ii)
(iii) The Company shall deliver to the Escrow Agent certificates from the
Company, signed by the President or a Vice President thereof, certifying that
attached thereto is a true and correct copy of resolutions adopted by the
Company's Board of Directors authorizing (A) the execution, delivery and
performance of this Agreement, the Securities Purchase Agreement, the
Registration Rights Agreement, the Prepaid Warrants, the Incentive Warrants and
other documentation related to the Offering and (B) the reservation for issuance
and issuance of the Warrant Shares, and certifying that such resolutions have
not been modified, rescinded or amended and are in full force and effect.
(iv)
(v) The Company shall deliver to the Escrow Agent a certificate of good
standing of the Company, dated as of a recent date, from the Secretary of State
of the State of New York.
(i) Each Investor shall deliver to the Escrow Agent two executed copies of the
Securities Purchase Agreement and Registration Rights Agreement signed by such
Investor, and
the Company shall deliver to the Escrow Agent with respect to each Investor two
executed copies of its acceptance of the Securities Purchase Agreement and
Registration Rights Agreement executed by such Investor.
(ii)
(iii) Each Investor shall have delivered by wire transfer to an escrow account
designated by the Escrow Agent an amount equal to the aggregate purchase price
of the Units(s) being purchased by such Investor at such Closing.
(iv)
(v) The Company shall have delivered to the Escrow Agent the duly executed
Prepaid Warrants and Incentive Warrants being purchased by the Investors in such
denominations as the Investors shall request.
(vi)
(vii) The Company and the Placement Agent shall instruct the Escrow Agent to pay
to the Company the purchase price (the "Purchase Price") for the Units
subscribed for at such Closing, less the Placement Agent Fee (as defined below),
out of the funds on deposit in the escrow account received from Investors whose
Securities Purchase Agreements have been accepted.
(viii)
(b) Placement Fee- Expenses. The Company covenants and agrees to pay to the
Placement Agent at each Closing a fee (the "Placement Agent Fee") equal to 9.78%
of the aggregate gross proceeds received by the Company from the sale of the
Units at such Closing. Such Placement Agent Fee shall be delivered by the Escrow
Agent to Zanett by wire transfer, in accordance with Zanett's written wiring
instructions, from the funds on deposit in the escrow account simultaneously
with payment for and delivery of the Units at such Closing under the Securities
Purchase Agreement as provided in paragraph 2(a) above. In addition, the
Placement Agent shall be entitled to receive from the Company a non-accountable
expense allowance (the "Expense Allowance") equal to 2.75% of the aggregate
gross proceeds received by the Company from the sale of the Units at the
Closing. Such Expense Allowance shall be delivered in the same manner as the
Placement Agent Fee.
(c)
(d) Warrants. In addition to the Placement Agent Fee, at the Closing under the
Securities Purchase Agreement, the Company shall issue to the Placement Agent
warrants, in substantially the form attached hereto as Exhibit A, to purchase
Thirty-Nine Thousand (39,000) shares of the Company's Common Stock (the
"Placement Warrants"). The Placement Warrants shall be exercisable for a period
of five (5) years from the date of issuance at a price per share of $10.00 (the
"Fixed Conversion Price"). The shares of the Company's Common Stock issuable
upon exercise of the Placement Warrants shall hereinafter be referred to as the
"Placement Warrant Shares." The Company shall grant the Placement Agent certain
registration rights under the Securities Act with respect to the Placement
Warrant Shares pursuant to the Registration Rights Agreement.
(e)
(f) Expenses of Offering. The Company shall be responsible for and shall bear
all expenses directly and necessarily incurred by it in connection with the
Offering, including, but
not limited to, the following: filing fees, registrar and transfer agent fees,
investigatory fees (including, but not limited to travel, lodging and
entertainment expenses), issuer's counsel and accounting fees, blue sky fees and
counsel, if any, and issue and transfer taxes, if any. In the event the Closing
under the Securities Purchase Agreement does not occur during the Term, the
Company shall reimburse the Placement Agent for its reasonable out-of-pocket
expenses incurred in connection with the Offering (up to a maximum of $20,000).
1. Representations and Warranties and Covenants of the Company.
2.
(a) The Company represents and warrants to Zanett that this Agreement has been
duly authorized, executed and delivered by the Company and, assuming the due
execution by Zanett, constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(a) The Company has delivered to Zanett true and complete copies of all reports,
schedules, forms, statements and other documents filed by the Company on or
after December 31, 1995 with the Securities and Exchange Commission (the "SEC")
pursuant to the reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents (other than exhibits) incorporated by reference therein,
being hereinafter referred to as the "SEC Documents"). As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the Exchange Act and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of their respective
dates, the financial statements of the Company included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to December 31, 1998, and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in such financial statements, which, individually or in the aggregate,
are not material to the financial condition or operating results of the Company.
(b)
(c) The Company recognizes and confirms that Zanett (i) will use and rely
primarily on the SEC Documents and on information available from generally
recognized public sources in performing the services contemplated by this
Agreement without having independently verified the same; (ii) is authorized to
assist the Company in the structuring of the Offering with any prospective
purchaser who is an "accredited investor" as defined in Regulation D under the
Securities Act and to provide copies of the SEC Documents and forms of the
Securities Purchase Agreement and other Offering Documents to prospective
purchasers of the Company's securities
in connection with the performance of Zanett's services hereunder; and (iii)
does not assume responsibility for the accuracy or completeness of the SEC
Documents.
(d)
(e) In addition to the foregoing, the Company hereby incorporates by reference
all of the representations and warranties and covenants to be set forth in the
Securities Purchase Agreement and the other Offering Documents with the same
force and effect as if specifically set forth herein.
(f)
(g) For so long as Zanett and/or its affiliates own any Securities, (i) the
Company shall provide Zanett, within three (3) business days of the filing or
preparation thereof, with such financial and other statements including, without
limitation, management letters and consolidated financial statements as are
provided to any other lenders to or security holders of the Company; (ii) in the
event any current officer, director, employee, consultant or other agent ceases,
subsequent to the date hereof, to have such relationship with the Company and
such cessation has, or is likely to have, a material adverse effect on the
Company, taken as a whole, the Company shall promptly notify Zanett of such
event, which notification shall comprehensively describe such circumstances;
(iii) the Company shall, on a regular basis, provide to Zanett updates of any
material litigation and/or governmental proceedings which could reasonably be
expected to have a material adverse effect on the business of the Company; and
(iv) the Company shall promptly provide to Zanett notice of any material event
of default under any agreement or other document with any lender or holder of
any security of the Company. Zanett shall hold in confidence and shall not make
any disclosure (except to an Investor) or use of any such information disclosed
to it pursuant to clauses (i) through (iv) above which the Company determines in
good faith to be confidential, and of which determination Zanett is so notified,
unless (a) the release of such information is ordered pursuant to a subpoena or
other order from a court or government body of competent jurisdiction or (b) the
information has been made generally available to the public other than by
disclosure in violation of this or any other agreement. Anything contained
herein to the contrary notwithstanding, Placement Agent's obligations to proceed
with the Offering is conditioned upon Placement Agent's due diligence
investigation of the Company and Zanett shall be fully informed by the Company
of any events which might have a material affect on the financial condition of
the Company. If, in Zanett's opinion, the condition of the Company, financial or
otherwise, and its prospects are affected in a material and/or adverse manner
and do not fulfill Zanett's expectations, Zanett shall have the sole discretion
to review and determine its continued interest in the Offering.
(h)
(i) For so long as Zanett and/or its affiliates own any Securities, the
Company shall make available, during regular business hours, all records and
books of account of the Company for inspection by Zanett upon not less than five
(5) business days prior written notice from Zanett. The Company shall permit
Zanett, during regular business hours, to inspect its properties upon not less
than five (5) business days prior written notice from Zanett.
(j)
(k) The Company has the requisite corporate power and authority to enter into
and perform this Agreement and the Placement Warrants in accordance with the
terms hereof. The
execution and delivery of this Agreement and the Placement Warrants by the
Company and the consummation by it of the transactions contemplated hereby
(including, without limitation, the reservation for issuance and issuance of the
Placement Warrant Shares issuable upon exercise thereof) have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, or its shareholders is
required.
(l)
(m) The Placement Warrants and the Placement Warrant Shares issuable upon the
exercise thereof are duly authorized and, upon issuance of the Placement Warrant
Shares upon exercise of the Placement Warrants in accordance with the terms
thereof, the Placement Warrant Shares will be validly issued, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
issue thereof and shall not be subject to preemptive rights or other similar
rights of the shareholders of the Company.
(n)
(o) The execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby will
not (A) result in a violation of the Company's Certificate of Incorporation or
By-laws or (B) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company is a party, or result in
a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations) applicable to the Company or
by which any property or asset of the Company is bound or affected (except, with
respect to clause (B), for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a material adverse effect on the operation, properties,
prospects or financial condition of the Company ("Material Adverse Effect")).
The Company is not in violation of its Certificate of Incorporation or By-laws
and is not in default (and no event has occurred which with notice or lapse of
time of both would put the Company in default) under, nor has there occurred any
event giving others (with notice or lapse of time or both) any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company is a party, except for possible
defaults as would not, individually or in the aggregate, have a Material Adverse
Effect. The business of the Company is not being conducted, and shall not be
conducted, in violation of any law, ordinance or regulation of any governmental
entity, except for possible violations which either singly or in the aggregate
do not have a Material Adverse Effect. Except as specifically contemplated by
this Agreement and as required under the Securities Act and any applicable state
securities laws, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self regulatory agency in order for it
to execute, deliver or perform any of its obligations under this Agreement in
accordance with the terms hereof.
(p)
(q) The Company shall at all times have authorized, and reserved for the
purpose of issuance, a sufficient number of Placement Warrant Shares to provide
for the full exercise of the outstanding Placement Warrants.
(a) The Company shall promptly secure the listing of the Placement
Warrant Shares upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance) and shall maintain, so long as any other shares of
Common Stock shall be so listed, such listing of all Placement Warrant Shares
from time to time issuable upon exercise of the Placement Warrants.
2. Publicity. The Company shall not make any reference to Zanett or to any of
its affiliates in any release or other communication without Zanett's prior
written consent. Without Zanett's prior written consent, no advice rendered by
Zanett in connection with the services performed by Zanett pursuant to this
Agreement will be quoted by the Company, its affiliates or representatives nor
will any such advice be referred to in any report, document, release or other
communication, whether oral or written, prepared or issued or transmitted by
such person, except to the extent required by law (in which case the appropriate
party shall so advise Zanett in writing prior to such use and shall consult with
Zanett with respect to the form and timing of the disclosure).
3.
4. Indemnification and Contribution.
5. (a) To the extent permitted by law, the Company will indemnify, hold harmless
and defend Zanett and each of its directors, officers, partners, members,
employees, agents and each person who controls Zanett within the meaning of the
Securities Act or the Exchange Act, if any, (each, an "Indemnified Person"),
against any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any transaction contemplated by this
Agreement, the retention of Zanett as Placement Agent under this Agreement, the
performance of services by Zanett hereunder or any involvement or alleged
involvement of Zanett in the Offering or (ii) any breach of any of the Company's
representations, warranties or covenants contained herein. The Company shall
reimburse each of the Indemnified Persons, promptly as such expenses are
incurred and are due and payable, for any reasonable legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 5(a) shall not
(i) apply in instances where the Claims were the result of Zanett's gross
negligence or based on Zanett's wilful misconduct, and (ii) apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld.
(a) Promptly after receipt by an Indemnified Person under this Section 5 of
notice of the commencement of any action (including any governmental action),
such Indemnified Person shall, if a Claim in respect thereof is made against the
Company under this Section 5, deliver to the Company a written notice of the
commencement thereof, and the Company shall have the right to participate in,
and, to the extent the Company so desires, to assume control of the defense
thereof with counsel mutually satisfactory to the Company and the Indemnified
Person; provided,
however, that an Indemnified Person shall have the right to retain its own
counsel (with the fees of such counsel not to exceed $250 per hour), with the
fees and expenses to be paid by the Company, if, in the reasonable opinion of
counsel retained by the Indemnified Person, the representation by such counsel
of the Indemnified Person and the Company would be inappropriate due to actual
or potential differing interests between such Indemnified Person and any other
party represented by the Company's counsel in such proceeding. The Company shall
pay for only one separate legal counsel for the Indemnified Persons, and such
legal counsel shall be selected by Placement Agent. The failure to deliver
written notice to the Company within a reasonable time of the commencement of
any such action shall not relieve the Company of any liability to the
Indemnified Person under this Section 5, except to the extent that the Company
is actually prejudiced in its ability to defend such action. The indemnification
required by this Section 5 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as such expense,
loss, damage or liability is incurred and is due and payable.
(b)
(c) To the extent any indemnification by the Company of an Indemnified
Person is prohibited or limited by law or otherwise unavailable in respect of
any Claim, the Company agrees to make the maximum contribution with respect to
any amounts for which it would otherwise be liable under Section 5 to the
fullest extent permitted by law. In this regard, the Company shall contribute to
the amount paid or payable by such Indemnified Person as a result of any such
Claim (i) in such portion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Indemnified Person, on the
other, from the structuring and issuance of the securities in the Offering or
any other transaction in which Zanett rendered services hereunder or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and of the Indemnified Person, on the other, in connection with
untrue statements or omissions or other actions (or alleged untrue statements,
omissions or other actions) which resulted in such Claim as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Indemnified Person, on the other, shall be
deemed to be in the same proportion as the total gross proceeds received by the
Company in the Offering or any other financing bears to such Indemnified
Person's compensation. The relative fault of the Company on the one hand and of
the Indemnified Person on the other shall be determined by reference to, among
other things, whether such untrue statements or omissions or other actions (or
alleged untrue statements, omissions or other actions) relate to information
supplied or action taken by the Company, on the one hand, or by the Indemnified
Person, on the other, and the relevant persons' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statements, omission or actions. The amount paid or payable by a party as a
result of the Claim shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The Company and Zanett agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above.
(d)
(e) The aforesaid indemnity and contribution agreements shall apply to
any related activities engaged in by any Indemnified Person prior to this date
and to any modification of Zanett's engagement hereunder, and shall remain in
full force and effect regardless of any investigation made by or on behalf of
Placement Agent or any of its agents, employees, officers, directors or
controlling persons and shall survive the issuance of any securities in any
transaction referred to hereunder (including the Offering) and any termination
of this Agreement or Placement Agent's engagement hereunder. The Company agrees
to promptly notify Zanett of the commencement of any litigation or proceeding
against it or any of its directors, officers, agents or employees in connection
with the transactions contemplated hereby.
(f)
(g) The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company, its owners, creditors or security holders for or in connection with
advice or services rendered or to be rendered by Zanett pursuant to this
Agreement, the transactions contemplated hereby or any Indemnified Person's
actions or inactions in connection with any such advice, services or
transactions except for liabilities (and related expenses) of the Company that
are determined by a final judgment of a court of competent jurisdiction to have
resulted primarily from such Indemnified Party's gross negligence or wilful
misconduct in connection with any such advice, actions, inactions or services.
(h)
2. Survival of Certain Provisions. The representations, warranties, covenants
and provisions contained in Section 2(f), Section 3, Section 4 and Section 5
hereof shall survive in full force and effect until that date which is three (3)
years from the date hereof (or such longer period as may be specified in such
provisions) regardless of (a) any completion or termination of any financing
contemplated by this Agreement (including the Offering), (b) any termination of
this Agreement, or (c) any investigation made by or on behalf of Placement Agent
or any affiliate of Placement Agent, and shall be binding upon, and shall inure
to the benefit of, any successors, assigns, heirs and personal representatives
of the Company, Zanett, the Indemnified Parties and any holder of Placement
Warrants.
3.
4. Miscellaneous.
5.
(a) All notices, requests, demands and other communications which are required
or may be given hereunder shall be in writing and shall be deemed to have been
duly given when delivered personally, receipt acknowledged or five (5) days
after being sent by registered or certified mail, return receipt requested,
postage prepaid. All notices shall be made to the parties at the addresses
designated above or at such other or different addresses which party may
subsequently provided with notice thereof, and, to their respective legal
counsel, as follows:
(i) If to Placement Agent, to
(ii)
(iii) The Zanett Securities Corporation
(iv) Tower 49, 25th Floor
(v) 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
-with a copy to -
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esquire
(i) If to the Company, to
(ii)
(iii) The Netplex Group, Inc.
(iv) 0000 Xxxxxxxxxx Xxxxx, 0xx Xxxxx
(x) XxXxxx, XX 00000
(vi) Attention: Xxxx Xxxxx, President and CEO
(vii)
-with a copy to -
Xxxxxxx Xxxxxxx Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxx
(a) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. This Agreement, once executed by a
party, may be delivered to the other parties hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
(a) This Agreement shall be governed by, and construed in accordance
with, the
(b) laws of the State of New York (without regard to its conflict of
laws provisions). The Company hereby agrees to submit to the exclusive
jurisdiction of an arbitration panel of the National Association of Securities
Dealers, Inc. located in the City of New York in the State of New York in
connection with any suit, action or proceeding related to this Agreement or any
of the matters contemplated hereby, irrevocably waives any defense of lack of
personal jurisdiction and irrevocably agrees that all claims in respect of any
suit, action or proceeding may be heard and determined in by such panel. The
Company irrevocably waives, to the fullest extent it may effectively do so under
applicable law any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding brought before any such court and
any claims that any such suit, action or proceeding brought in any such
arbitration panel has been brought in an inconvenient forum. Each party agrees
to pay or reimburse the other for all reasonable costs and expenses incurred in
connection with the enforcement of any of its rights under this Agreement,
including without limitation, all attorneys' fees and expenses of its counsel.
(c)
(d) The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
(e)
(f) This Agreement may not be modified or amended except in writing duly
sworn by the parties hereto.
(g)
(h) If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against its regulatory policy, the remainder of
the terms, provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
(i)
(j) Each party to this Agreement has participated in the negotiation and
drafting of this Agreement. As such, the language used herein shall be deemed to
be the language chosen by the parties hereto to express their mutual intent, and
no rule of strict construction will be applied against any party to this
Agreement.
(k)
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Please sign and return the original and one copy of this letter to
indicate your acceptance of the terms set forth herein whereupon this letter and
your acceptance shall constitute a binding agreement between you and the
Company.
Very truly yours,
The Netplex Group, Inc.
By:/s/XXXX X. XXXXX
-------------------------------------
XXXX X. XXXXX
CHAIRMAN & CEO
Accepted and Agreed to this
22nd day of March, 2000.
THE ZANETT SECURITIES CORPORATION
By:
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Name: Xxxxxxx Xxxxxxxx
Title: President
