EXHIBIT 4.10
INVESTMENT BANKING AGREEMENT
This Investment Banking Agreement (the "Agreement") is made and entered
into this day of November 6, 1998, between IFS International, Inc., Inc., a
Delaware corporation ("Company"), and MDB Capital Group LLC ("MDB").
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged the parties agree as follows:
1. Purpose. Company hereby engages MDB as a non-exclusive, independent
advisor and consultant (and not as an agent) during the term specified
hereinafter to render financial consulting and investment banking advice to
Company upon the terms and conditions as set forth herein. The parties
contemplate that MDB at a future date may act as a placment agent for
securities of the company. The parties will agree on terms and fees at the
time of the offering.
2. Term. This Agreement shall be effective for a period of twelve (12)
months (the "Term"), commencing on the date of this Agreement.
3. Duties of MDB.
(a) During the term of this Agreement, MDB will provide Company
with such consulting advice with respect to acquisitions and financial
planning, capital structure issues, the continued refinement of a
business plan and the evaluation of financing alternatives as is
reasonably requested by Company. In performance of these duties, MDB
shall provide Company with the benefits of its reasonable judgment and
efforts. MDB's duties shall include, but will not necessarily be
limited to, the following:
(i) Advice regarding the formulation of business and
financing goals and plans;
(ii) Advice concerning strategic issues, including
acquisitions, other alliance partnerships and joint ventures;
(iii) Advice concerning short and long range financial
planning;
(iv) Exposing the Company to business opportunities and
potential institutional and other investors;
(v) Advice regarding the implementation of the Company's
goals and plans;
(vi) Not to disclose any information or make any
representations or warranties to or in favor of any person
whatsoever in relation to the Company or its business or
activities or relating to shares in the Company without the prior
written consent of the Company, at its absolute and unfettered
discretion following full disclosure having been made of the
identity of the persons to whom the disclosures, representations
or warranties will be made and the content, manner, and context
thereof; and
(vii) To use its reasonable best endeavors to comply with
all reasonable requests of the Company in relation to the
performance of the duties of MDB hereunder.
(b) In connection with rendering its advice hereunder, MDB and
its employees and agents shall be given reasonable access to Company's
officers, premises, and records.
(c) Company acknowledges that MDB's advice pursuant hereto does
not and will not constitute any guarantee or other assurance as to the
ability of the Company to obtain financing or to accomplish any other
goals or plans of Company. This Agreement contains the entire
compensation payable by Company to MDB for any and all services.
(d) Company acknowledges that MDB retains the right to provide
consulting advice to other parties. Nothing herein contained shall be
construed to limit or restrict MDB in conducting such business with
respect to others, or in rendering advice to others or conducting any
other business. MDB, however, will not provide consulting advice in
favor of any other parties engaged in (or who may use the advice or
pass on their advice in favor of any other persons engaged in) the
same business without Company's prior written consent.
4. Compensation. The Company shall compensate MDB in amounts to be
mutuall agreed upon in the event MDB originates a bank financing or other
transaction, provides a fairness opinion or other valuation analysis,
introduces the company to a source of business from which the Company
derives revenue, or acts as placement agent or underwriter for the
Company's securities.
5. Expenses. Company shall advance or, upon billing, promptly
reimburse MDB for reasonable out-of-pocket expenses incurred by MDB in
connection with the services rendered by MDB pursuant to this Agreement.
Expenses that shall be reimbursable include travel, food, lodging and
transportation, research materials, long distance telephone, facsimile,
messenger and other expenses needed to be incurred to perform MDB's
services. Expenses in excess of $1,000 will be reimbursed only upon the
Company's prior approval of the expense.
6. Proprietary Information. MDB acknowledges and agrees that it is in
a fiduciary relationship with Company and agrees that it will not sell or
use in any manner not authorized in writing by Company, or disclose any
information provided to MDB by the Company or its employees, agents, or
representatives, including without limitation any of the Company's trade
secrets, technical information, agreements, or other proprietary
information or information concerning the Company's current and any future
proposed operations, services, or products, regardless of whether such
information was obtained prior to, during or after the engagement of MDB by
the Company pursuant to this Agreement, unless MDB is authorized to do so
in writing by the Company and/or Company releases such information to the
public via public announcements or announcements on recognized stock
exchanges.
7. Representations and Warranties of the Company and of MDB. Each
party hereto represents and warrants to the other party hereto as follows:
(a) The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby (i) are within
the corporate power and authority of such party, (ii) do not require
the approval or consent of any stockholders of such party, and (iii)
have been duly authorized by all necessary corporate action on the
part of such party.
(b) This Agreement has been duly executed and delivered by such
party and constitutes the legal, valid, binding and enforceable
obligation of party, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
8. Arbitration. Any and all controversies or claims arising out of or
relating to this Agreement shall be settled by binding arbitration in Los
Angeles County in accordance with the rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator(s) may be
entered by any court having jurisdiction thereof. The parties shall be
entitled to discovery in accordance with the provisions of California Code
of Civil Procedure Section 1283.05 which, by this reference, is made
applicable to this Agreement. Nothing herein shall prohibit either party
from seeking injunctive relief in a court of law while the arbitration is
pending.
9. Assignment. This Agreement and the rights hereunder may not be
assigned by either party (except by operation of law) without prior written
consent of the other party, but, subject to the foregoing limitation, this
Agreement shall be binding upon and inure to the benefit of the respective
successors, assigns, and legal representatives of the parties.
10. Notice. Any notice or other communications between the parties
hereto shall be sufficiently given if sent by certified registered mail,
postage prepaid, or by telecopy, if to Company addressed to it at,
Rensselear Technology Park, 000 Xxxxxx Xxxx, Xxxx, Xxx Xxxx 00000, or if to
MDB, addressed to it at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000, or to such other address as hereafter by designated in
writing by one party to the other. Such notice or other communications
shall, if sent by telecopy, be deemed to be given upon receipt of the
confirmation of its proper transmission and if outside the hours of 9:00 am
to 5:00 pm on any business day in the jurisdiction of the addressee, shall
be deemed to given at 9:00 am on the next business day. Notices sent by
certified or registered mail or prepaid postage shall be deemed to be
received three business days after the date of forwarding the same. For the
purposes of this Agreement, "business day" shall refer to a day in which
trading banks are open for business.
11. Captions. The heading of the sections of this Agreement are
intended solely for convenience of reference and are not intended and shall
not be deemed for any purpose whatsoever to modify or explain or place any
constriction upon any of the provisions of this Agreement.
12. Attorneys' Fees. In the event any party hereto shall institute an
action, including arbitration pursuant to Section 8 of this Agreement, to
enforce any rights hereunder, the prevailing party in such action shall be
entitled, in addition to any other relief granted, to reasonable attorneys'
fees and costs.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings of
the parties, and there are not representations, warranties, or other
agreements between the parties in connection with the subject matter hereof
except as specifically set forth herein. No supplement, modification
amendment, waiver or termination of this Agreement shall be binding unless
executed in writing by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver
of any provisions hereof (whether or not similar) nor shall waiver
constitute a continuing waiver.
14. Options. The Company shall as of this date enter into an agreement
to sell MDB a warrant or warrants to purchase up to 300,000 shares of
common stock of the Company (the "Warrants") at an exercise price per share
of $2.50. MDB shall pay the Company $30,000 for the Warrants.
15. Indemnification by the Company and by MDB.
(a) MDB hereby agrees to indemnify and save Company and hold
Company harmless in respect of all causes of actions, liabilities,
costs, charges and expenses, loss and damage (including consequential
loss) suffered or incurred by the Company (including legal fees)
arising from any willful or grossly negligent act or omission of MDB
or its employees, servants, and agents and arising from contravention
by MDB of any of its employees, servants, and agents of any of the
terms and conditions imposed on MDB pursuant to this Agreement.
(b) Company hereby agrees to indemnify and save MDB and hold MDB
harmless in respect of all causes of actions, liabilities, costs,
charges and expenses, loss and damage (including consequential loss)
suffered or incurred by MDB (including legal fees) arising from any
intentional or grossly negligent act or omission of the Company or its
employees, servants, and agents and arising from contravention by
Company or any of its employees, servants, and agents of any of the
terms and conditions imposed on the Company pursuant to this
Agreement.
(c) No party shall be liable to any other party hereunder for any
claim covered by insurance, except to the extent that the liability of
such party exceeds the amount of such insurance coverage. Nothing in
this clause (c) shall be construed to reduce insurance coverage to
which any party may otherwise be entitled.
16. Termination. This Agreement may be terminated by either party upon
written notice delivered to the other 60 days in advance of the date
noticed for termination. The Company shall continue to pay fees under this
Agreement and MDB shall continue to render services under this Agreement
through date of termination.
17. Severability. Any portion of the indemnification and/or
confidentiality provisions herein which may be prohibited or unenforceable
in any applicable jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability, but
shall not invalidate the remaining portions of such provisions or the other
provisions hereof or affect any such provisions or portion thereof in any
other jurisdiction.
18. Governing Law. The parties hereto hereby agree that this Agreement
shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this
day and year first above written.
MDB: MDB CAPITAL LLC
By _____________________________________________________
Xxxxxxxxxxx X. Xxxxxxx, Partner
COMPANY: IFS International, Inc., Inc.
A Delaware Corporation
By _____________________________________________________
Xxxxx X. Xxxxxxxx, Chairman
