Exhibit 4
ATLANTIS EQUITIES, INC.
000 XXXXXXXXX XXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
TEL: (000) 000-0000 FAX: (000) 000-0000
April 11, 2002
Xx. Xxxxxx Xxxx
Chairman and Chief
Executive Officer
Forward Industries, Inc.
0000 Xxxxx Xxxx
Xxxxx X
Xxxxxxx Xxxxx, XX 00000
Dear Xxxxx:
As discussed, the purpose of this letter is to confirm our understanding
with respect to the introduction by Atlantis Equities, Inc., a New York
corporation ("Atlantis"), to Forward Industries, Inc., a New York corporation
(the "Company"), of a company called for purposes of this letter XYZ Corp.
("XYZ") for the purpose of the Company's consideration of a proposed financial
transaction, which may be in the form of an acquisition or business combination
involving XYZ (the "Transaction"). XYZ has authorized Atlantis to make such
introduction for the purposes stated herein.
1. a. As compensation for making such introduction, the Company hereby
agrees to pay Atlantis a fee (the "Fee") upon the consummation, if any, of the
Transaction between the Company and XYZ (which, for the purposes of a
Transaction relating to which Atlantis shall be entitled to the Fee hereunder,
shall be deemed to include any company or companies controlled by, under common
control with or in control of XYZ (collectively, an "XYZ Affiliate")). The
amount of the Fee shall be 10% of the aggregate consideration paid by the
Company (if it is the acquirer or survivor of a merger or other business
combination) or by XYZ or an XYZ Affiliate (if it is the acquirer or survivor of
a merger or other business combination) in connection with the Transaction.
"Aggregate consideration" includes without limitation cash, stock, assumption of
debt, earnout payments and other types consideration, without duplication, as
and when paid in connection with the Transaction.
b. Although Atlantis will, if requested by the Company, use
reasonable efforts to assist and advise the Company in connection with the
Transaction, the Fee that is payable to Atlantis pursuant to this paragraph 1 is
solely as a result of (i) having made the foregoing introduction and (ii) the
consummation of a Transaction within 24 months from the date hereof and is in no
way dependent upon any such advisory efforts by Atlantis. The Fee that is
payable to Atlantis pursuant to this paragraph 1 shall be paid by the Company to
Atlantis in cash by Company check at the closing of the Transaction (with
respect to the amount of consideration
being transferred at such time) and thereafter as and when additional
consideration, if any, is paid or payable.
2. The Company shall have no obligation to enter into any Transaction and
shall have the right in its sole discretion to reject any Transaction or to
terminate negotiations with respect thereto or this letter agreement at any
time, it being understood and agreed that neither XYZ (or any XYZ Affiliate, as
applicable) nor the Company shall incur any obligation hereunder (except
pursuant to paragraph 3 hereof) unless and until their respective boards of
directors (and shareholders, if applicable) determine to approve a Transaction
in accordance with their certificates of incorporation and by-laws (or other
charter documents) and applicable laws and a Transaction is consummated pursuant
to definitive agreements in customary form.
3. Each of Atlantis and its affiliates and the Company agrees that: (i) if
either has or comes into possession of material non-public information with
respect to the other or XYZ, it shall at all times maintain the strict
confidentiality thereof except as may be required to be disclosed pursuant to
applicable laws; (ii) the Company and XYZ may enter into a confidentiality
agreement in connection with a possible Transaction and information to be
exchanged relating thereto; (iii) it shall otherwise comply with all applicable
laws and agreements to which each is now or may hereafter be a party in
connection with the Transaction or other matters involving them; and (iv) except
as may be required by applicable laws, it shall not make or issue, or cause or
permit to be made or issued, any disclosure or announcement of any kind in any
medium, directly or indirectly, alone or in concert with others, concerning this
letter or the subject matter hereof. The undertakings contained herein shall
survive any termination of this letter unless and until superseded pursuant to
any definitive agreement executed in connection with a Transaction.
If the foregoing correctly sets forth the understanding and agreement
between Atlantis and the Company, please so indicate by signing the enclosed
copy of this letter, which may be executed in counterparts, whereupon it shall
become a binding agreement between the parties hereto in accordance with the
laws of the State of New York as of the date first above written. This Agreement
constitutes the entire agreement, and supersedes any prior agreements and
understandings (oral or written), between the parties hereto relating to the
subject matter of this Agreement. To be effective, any modification, amendment
or supplement of this Agreement must be in writing and signed by the party to be
charged thereby.
Very truly yours,
ATLANTIS EQUITIES, INC.
By:______________________
Name:
Title:
Accepted and agreed to as of
the date first written above:
FORWARD INDUSTRIES, INC.
By:________________________
Name: Xxxxxx Xxxx
Title: Chief Executive Officer
