EXHIBIT 10.28
4/02/98
Xxxxx Xxxxxxxxxx, Xx.
DynamicWeb Enterprises, Inc.
271 Route 00 Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxxx, XX 00000
Dear Xxxxx:
This letter confirms the terms of the agreement between
DynamicWeb Enterprises, Inc. ("DWEB") and Perry & Co. ("Perry").
1. Engagement. The company has agreed to engage Perry as
an independent contractor and consultant to provide investor
relation services to the DWEB, and Perry has agreed to provide
these services to DWEB, subject to the terms and conditions
described in this letter.
2. Term. The initial term of the engagement is for a
period of one year from the date of this letter. This agreement
may be renewed at the end of the initial term, and at the end of
any subsequent renewal term, for successive three-month periods,
but only upon written notice by DWEB to Perry that it desire to
continue the engagement. Both parties acknowledge that the
parties' judgment of the quality of services provided by Perry
will be subjective, and that DWEB therefore has the absolute
right to determine its satisfaction with these services.
Accordingly, there is no obligation, implied or otherwise, of
DWEB to renew this agreement for successive terms.
3. Services. Perry will provide ongoing research coverage
(while retaining the ultimate and unhampered right to determine
whether to pronounce DWEB a buy, sell or otherwise in its
published reports), update reports, corporate profiles/postcards,
coverage announcements for news wires, free access to proprietary
investor databases, free access to proprietary broker databases
and consultation on securing nonproprietary investor and broker
databases. Perry will also be available to provide counseling on
style and content of investor relations material (DWEB will be
responsible for ascertaining that said material meets all
jurisdictional and regulatory requirements prior to public
distribution) database management, lead generation and lead
distribution and report distribution.
Perry will additionally provide DWEB with a premium position
(first page, standard-sized "Watch List" banner) on the website,
the Internet Stock Review, while operating, at no
additional cost.
Perry additionally will distribute (or notify the
availability of) to the subscribers of the Internet Stock Review
Online newsletter, Press Releases and/or Corporate Profiles
created by AV Newswire. AV Newswire creates audio and video
enhanced corporate press releases, corporate announcements and
product/service announcements. DWEB would have to contract
separately with AV Newswire for the production of any such
enhanced services.
4. Costs. DWEB will be responsible for all printing and
distribution, press release and/or advertising costs recommended
by Perry and pre-approved and prepaid by DWEB. DWEB will also be
responsible for all travel related costs incurred by Perry when
providing its services as determined by Perry and pre-approved
and prepaid by DWEB.
5. Compensation for Services. DWEB will pay Perry a fee
of $2,500 per month, payable monthly, in advance. In addition,
DWEB will grant to Perry options to purchase 45,000 shares of
DWEB and grant to Xxxx Xxxxxxxx) ("Xxxxxxxx") options to purchase
45,000 shares of DWEB at a price of $5.50 per share. The options
granted to Perry and Arberman will enable Perry and Arberman to
purchase such shares at any time commencing from time of
engagement at the above-stated price and up until _____ years
from the date of engagement. The options will enable Perry and
Arberman to purchase freely-traded shares (free of restrictive
legend) of DWEB.
Perry and DWEB agree that this compensation is a
nonrefundable payment for engagement of services. If DWEB
decides to terminate this agreement prior to end of the initial
term, no refund will be forthcoming to DWEB or be payable by
Perry.
6. Additional Obligations of Perry. Perry agrees that, in
connection with its investor relation services to DWEB, it will
abide by the following conditions:
(a) Perry will not release any financial or other
material information about DWEB without prior written consent and
approval of DWEB.
(b) Perry will not conduct any meetings with financial
analysts without informing the DWEB in writing in advance of the
proposed meeting.
(c) Perry will not release any information or data
about DWEB to any selected person(s), entity(s) and/or group(s)
if Perry is aware that such information or data has not been or
is not concurrently or generally disclosed by the company.
(d) After notice by DWEB of filing for a proposed
public offering of securities, and during any period of
restriction on publicity, Perry shall not engage in any public
relations efforts not in the normal course of business without
the prior written approval of legal counsel for DWEB.
(e) Perry will indemnify DWEB from all claims,
liability, costs or other expenses (including reasonable
attorneys' fees) incurred by DWEB as a result of any inaccurate
information concerning DWEB released by Perry, unless such
information was provided to Perry by DWEB, or as a result of any
breach by Perry of any of the terms and conditions of this
agreement.
7. Additional Obligations of the Company. DWEB agrees
that, in connection with this agreement, it will indemnify Perry
from all claims, liability, costs or other expenses (including
reasonable attorneys' fees) incurred by Perry as a result of any
inaccurate information concerning Perry provided by DWEB or any
of its officers or directors to Perry, or as a result of any
breach by DWEB of any of the terms and conditions of this
agreement. If, in DWEB's judgment, any material non-public
information concerning DWEB cannot be revealed, DWEB will advise
Perry that a quiet period is in effect. DWEB will not conduct
any unsolicited email campaigns without Perry's specific written
consent for any such campaign.
8. Independent Contractor. Perry is an independent
contractor responsible for compensation of its agents, employees
and representatives, as well as all applicable withholding and
taxes (including unemployment compensation) and all workers'
compensation insurance.
9. Assignment. The rights and obligations of each party
to this agreement may not be assigned without the prior written
consent of the other party.
10. Entire Agreement. This letter agreement between DWEB
and Perry contains the entire agreement between them. This
agreement may not be modified or extended except in writing and
signed by DWEB and Perry.
11. Arbitration and Waiver of Jury Trial. ANY DISPUTE
BASED UPON OR ARISING OUT OF THIS LETTER AGREEMENT SHALL BE
SUBJECT TO BINDING ARBITRATION TO BE HELD IN LOS ANGELES COUNTY,
CALIFORNIA BEFORE A RETIRED CALIFORNIA SUPERIOR COURT JUDGE.
JUDGMENT ON THE ARBITRATOR'S AWARD SHALL BE FINAL AND BINDING,
AND MAY BE ENTERED IN ANY COMPETENT COURT. AS A PRACTICAL
MATTER, BY AGREEING TO ARBITRATE ALL PARTIES ARE WAIVING JURY
TRIAL.
12. Attorneys' Fees. The prevailing party in any
arbitration or litigation arising out of or relating to this
letter agreement shall be entitled to recover all attorneys' fees
and all costs (whether or not such costs are recoverable
pursuant to California Code of Civil Procedure) as may be
incurred in connection with either obtaining or collecting any
judgment and/or arbitration award, in addition to any other
relief to which that party may be entitled.
Please sign this letter agreement in the space provided
below to indicate your agreement with the terms stated in this
letter.
Sincerely,
By /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
President, Perry & Co.
AGREED AND ACCEPTED:
DynamicWeb Enterprises, Inc.
By /s/ Xxxxx Xxxxxxxxxx, Xx.
Xxxxx Xxxxxxxxxx, Xx.
Chief Executive Officer
