Exhibit 10.12
FINDERS AGREEMENT
This Finders Agreement (the "Agreement") is made and entered into as of
the effective date below among TSET, Inc. (TSET), a Nevada corporation, Xxxxxxx
X. Xxxxxx, and Xxxxxx X. Xxxxxx (Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx are
hereinafter collectively referred to as the "Finder").
RECITALS
TSET is interested in being introduced by Finder to prospective Investors
for the purpose of soliciting investments in the company. For such service, TSET
is willing to compensate Finder, subject to the covenants, conditions and
limitations set forth in this Agreement.
Finder is willing to provide the services contemplated by and in
accordance with the covenants, conditions and limitations of this Agreement.
AGREEMENT
In consideration of the foregoing recitals, the mutual covenants
hereinafter provided, and for other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound and equitably bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
1. TSET shall mean TSET, Inc. and its subsidiaries.
2. Act shall mean the Investment Advisers Act of 1940,
as amended;
3. Applicable Law shall mean and include any law enacted by
the Congress of the United States (including, without limitation, the Act), by
any legislature of any of the states comprising the United States of America, by
any parliament, congress or legislature of any country, province or state
outside of the United States of America.
4. Authorized Finder Investor shall have the meaning
ascribed thereto in paragraph 2 below;
5. Authorized Broker shall have the meaning ascribed
thereto in paragraph 2 below;
6. Finders Fee shall have the meaning ascribed thereto
in paragraph 3 below;
7. Person shall mean and include any individual,
partnership, limited liability company, corporation, trust or other entity;
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8. Investor shall mean Person whom shall make an
investment into TSET by any form including debt or equity;
9. Regulator shall mean and include the Securities and
Exchange Commission, any agency that regulates the purchase and sale of
securities within one of the states of the United States of America, and any
similar governmental agency of any country, province or state outside of the
United States.
2. SCOPE AND LIMITATIONS OF ENGAGEMENT.
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1. FINDERS AUTHORIZATION TO INTRODUCE TSET TO PROSPECTIVE
AUTHORIZED FINDER INVESTORS AND AUTHORIZED BROKERS. TSET hereby appoints Finder,
and Finder hereby accepts such appointment, on a non-exclusive basis, to contact
and introduce TSET to Persons believed by Finder to be Authorized Finder
Investors and Authorized Brokers that may provide debt- and/or equity-based
financing to TSET upon terms and conditions agreeable to TSET. Finder shall not
contact or otherwise initiate any effort to contact, directly or indirectly, any
Person for the purpose of making an introduction on behalf of the TSET without
the express prior written consent of the TSET.
(1) Following execution of this Agreement, and
periodically thereafter, Finder shall inform TSET of Persons believed by Finder
to be prospective Authorized Finder Investors and Authorized Brokers to whom
Finder desires to introduce to TSET.
(2) As to each such prospective Investor Broker, TSET
shall have the right, but not the obligation, to authorize Finder to take
appropriate steps to introduce such prospective Investor or Broker to the TSET.
Each such Person authorized by the TSET to be so contacted by Finder shall be an
Authorized Finder Investor or Authorized Broker. No such authorization shall be
effective unless in writing signed by the TSET. An Authorized Finder Investor is
determined by making a direct investment; while an Authorized Broker shall act
as an intermediary to other third party investors.
(3) By execution of this Agreement, all Persons in
Attachment A are authorized by TSET as Authorized Finder Investor and Authorized
Broker. TSET shall in good faith notify Finder in writing whether any Authorized
Finder Investor or Authorized Broker proposed to be contacted or introduced by
Finder to TSET hereunder has previously been contacted by, or previously
introduced to, TSET, in which case such proposed Authorized Finder Investor and
Authorized Broker shall be excluded from the list of approved Persons in
Attachment A. In connection with the execution of this Agreement and for
purposes of establishing the compensation payable to Finder hereunder, Finder
shall designate in Attachment A those Persons that are to be deemed Authorized
Finder Investors and Authorized Brokers hereunder. Such designation shall be a
condition of TSET's acceptance of those Persons listed in Attachment A.
2. AVOIDING DISPUTES REGARDING FINDERS RIGHTS. If, for any
reason, as to any specific prospective investor, Finder fails to strictly comply
with the procedure described in this paragraph 2 or fails to comply with any
other provision of this Agreement, Finder shall have no rights to compensation
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pursuant to paragraph 3 with regard to such prospective investor.
3. FINDERS FUNCTIONS LIMITED. The sole function of Finder
shall be to provide impersonal advisory services by bringing
together Authorized Finder Investors and TSET. Finder shall not, in
any manner, offer or sell any investment in the company. Finder
shall provide such assistance as TSET may request from time to time
regarding the structure, evaluation, and negotiation of definitive
terms of investment proposed by an Authorized Finder Investor and
Authorized Broker, the parties understanding that final approval of
all such terms shall be the sole responsibility of TSET.
3. INDEPENDENT STATUS OF FINDER. Finder shall, at all times,
be an independent contractor hereunder, rather than a co-venturer, agent,
employee, or representative of TSET. Finder shall work independently, without
supervision or training by TSET, shall be responsible for Finders taxes, shall
not be required to work on continuing daily basis or any specific work schedule,
and shall not be provided with office space or administrative support by the
TSET. Finder is permitted to engage in other businesses and ventures. Finder
shall be solely responsible for complying with all laws, rules, and regulations
applicable to its services hereunder.
4. TSET RETAINS ABSOLUTE DISCRETION. Notwithstanding any
other provisions of this Agreement, in accordance with TSET' s fiduciary duties,
TSET, may, in its sole and absolute discretion, refuse to meet with or admit any
prospective investor, and TSET shall be under no obligation to accept as
investor any Authorized Finder Investor.
6. CONFIDENTIALITY. Finder shall assist TSET in obtaining
execution by Authorized Finder Investors and Authorized Brokers of any
confidentiality agreements deemed necessary or proper by TSET to protect
non-public, confidential, or proprietary information.
3. COMPENSATION.
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1. FINDERS FEE. TSET shall pay to Finder and Finder shall
receive from TSET a fee equal to 1% of the Total Investment Value by Authorized
Finder Investors. TSET shall pay to Finder and Finder shall receive from TSET a
fee equal to 0.25% of the Total Investment Value by Authorized Broker. Total
Investment Value includes total value of all investments including equity, which
includes any options or warrants, debt, which includes any letter of credit
and/or any barter value for goods or services. Payment is to be paid in cash or
cashier's check via overnight delivery to contact address within five business
days of the availability of the Total Investment Value for expenditure by TSET,
or by wire deposit to Finder's designated bank account. Finder shall be solely
responsible for paying any and all federal, state, or local income and other
taxes arising out of payment of any compensation to Finder by TSET hereunder.
2. TRAVEL REIMBURSEMENT. TSET shall have the obligation to
Finder for reimbursement of any pre-approved travel or other pre-approved
expenses incurred by Finder in connection with services to be rendered by Finder
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pursuant to this Agreement, as expressly agreed in writing by TSET. Pre-approved
travel and pre-approved other expenses will be reimbursed within five business
days from receipt of expense documentation. Expenses incurred by Finder pursuant
to this Agreement shall not exceed an aggregate of $15,000 without TSET's prior
written consent.
3. NON-CIRCUMVENTION. TSET represents and warrants to Finder
that TSET shall not seek to circumvent Finder or contact directly any Authorized
Finder Investor or Authorized Broker not excluded by TSET in Attachment A or
seek to consummate any investment of any nature with any Authorized Finder
Investor or Authorized Broker without paying to Finder the compensation
described in this Section 3.
4. FINDERS WARRANTIES, REPRESENTATIONS AND ADDITIONAL
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COVENANTS.
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1. FULL AUTHORITY. Finder warrants and represents to TSET
that: (i) Finder has the full unrestricted right to enter into this Agreement,
(ii) by entering into this Agreement, Finder is not violating or otherwise
contravening any agreement to which Finder is bound or any Applicable Law; and
(iii) no Person must consent to the execution and performance of this Agreement
by Finder.
2. RECEIPT OF TSET BUSINESS PLAN. Finder acknowledges receipt
of the TSET Business Plan and represents that Finder has carefully reviewed the
TSET Business Plan and has been afforded an opportunity to fully inform himself
as to the contents thereof.
3. FRAUD AND BAD ACTS. Finder represents and warrants to TSET
that Finder is not now, and covenants that Finder shall not in the
future be, a Person (i) subject to an order of any Regulator under
Applicable Law, or (ii) convicted within the previous ten (10) years
of any felony or misdemeanor involving conduct described Section
203(e)(2)(A)-(D) of the Act or any similar Applicable Law, or (iii)
who has been found by any Regulator to have engaged, or been
convicted of engaging, in any conduct specified in paragraphs (1),
(4) or 5 of Section 203(f) of the Act or of any other similar
Applicable Law, or (iv) is subject to an order, judgment or decree
described in Section 203(e)(3) of the Act or any similar Applicable
Law.
4. COMPLIANCE WITH ALL LAWS. Finder covenants with TSET that
Finder shall comply with all Applicable Laws in connection with the
execution and performance of this Agreement and performance of
Finder's activities hereunder.
5. FULL DISCLOSURE TO TSET. Without limiting any other
provision of this Agreement, Finder agrees to fully disclose all
activities in which Finder is engaged pursuant to this Agreement and
fully, fairly and accurately report the results of all contacts with
Authorized Finder Investors.
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4. TERMINATION.
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1. This Agreement may be terminated immediately by TSET,
without notice, in the event that Finder commits a material breach of this
Agreement, in which event, Finder shall have no further entitlement to
compensation hereunder.
2. In the absence of breach by the Finder, TSET may terminate
this Agreement upon ten (10) days prior written notice to Finder. In this event,
Finder shall be entitled to all compensation pursuant to Paragraph 3 of this
Agreement with regard to investments made by an Authorized Finder Investor, as
if this Agreement had not been terminated.
3. Finder may terminate this Agreement upon ten (10) days
prior written notice. In this event, Finder shall be entitled to all
compensation pursuant to Paragraph 3 of this Agreement with regard to
investments made by an Authorized Finder Investor, as if this Agreement had not
been terminated, for a period of 6 months following the effective date of any
such termination; provided, however, if TSET later determines that Finder
committed a material breach of this Agreement prior to such termination, Finder
shall have no entitlement to compensation hereunder following the occurrence of
such breach.
5. MISCELLANEOUS.
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1. BINDING EFFECT AND SURVIVAL OF RIGHTS. This
Agreement will benefit and bind the parties and their respective personal
representatives, executors, administrators, heirs, legatees, devisees,
successors and permitted assigns.
2. NOTICES. All notices, demands, requests and other
communications required or permitted to be given by any provision of this
Agreement will be in writing addressed as follows:
If to TSET: 000 Xxxxx Xxxxx Xxxxxx, XXX 111
---------- Xxxx Xxxxxx, XX 00000
503.293.1270
Attn: Xxxxxxx X. Xxxxxx, Chairman and Chief
Executive Officer, or
Xxxxxxx X. Xxxxxxxx, Chief Financial
Officer
If to Finder: Xxxxxxx X. Xxxxxx
------------ 0000 Xxxxxx Xxxx Xxx
XxXxxx, Xxxxxxxx 00000
(000) 000-0000 home
(000) 000-0000 cell
(000) 000-0000 fax
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Xxxxxx X. Xxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000 home
(000) 000-0000 cell
Any such notice, demand, request or communication will be deemed to have
been given and received for all purposes under this Agreement: (a) on the date
of delivery when delivered in person; (b) on the date of transmission when
delivered by facsimile transmission (provided such transmission is confirmed by
transmission receipt and such notice is promptly confirmed by some other means
described herein); and/or (c) on the next business day after the same is
deposited with a nationally recognized overnight delivery service that
guarantees overnight delivery; provided, however, if the day such notice,
demand, request or communication will be deemed to have been given and received
as aforesaid is not a business day, such notice, demand, request or
communication will be deemed to have been given and received on the next
business day.
Any party to this Agreement may change such parties address for the
purpose of notice, demands, requests and communications required or permitted
under this Agreement by providing written notice of such change of address to
all of the parties by written notice as provided herein.
3. INTERPRETATION. The parties acknowledge to each other
that each party has reviewed and participated in the negotiation of this
Agreement. Accordingly, the normal rule of construction to the effect that any
ambiguities are resolved against the drafting party will not be employed in the
interpretation of this Agreement.
4. INCORPORATION. The Recitals, all exhibits and schedules
attached hereto, or to be attached hereto, and all other agreements and
instruments referred to herein are hereby incorporated by reference into this
Agreement as fully as if copied herein verbatim.
5. FURTHER ASSURANCES. The parties further agree that, upon
request, they will do such further acts and deeds and will execute, acknowledge,
deliver and record such other documents and instruments as may be reasonably
necessary from time to time to evidence, confirm or carry out the intent and
purpose of this Agreement.
6. LAWFUL AUTHORITY. If any party executing this Agreement is
a corporation or limited liability company, the individual executing on behalf
of the corporation or limited liability company hereby personally represents and
warrants to all other parties that he/she has been fully authorized to execute
and deliver this Agreement on behalf of (a) the corporation pursuant to a duly
adopted resolution of its Board of Directors, or by virtue of its bylaws, or
within the scope of authority of the person executing this Agreement; or (b) the
limited liability company pursuant to a duly adopted resolution of its members
or by virtue of its operating agreement.
7. ATTORNEYS FEES. If any legal action or other proceeding
(including arbitration pursuant to this Agreement) is brought for the
enforcement of this Agreement, or because of any alleged dispute, breach,
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default or misrepresentation in connection with any provisions of this
Agreement, the prevailing party will be entitled to recover reasonable attorneys
fees, court costs and all reasonable expenses, even if not taxable or assessable
as court costs (including, without limitation, all such fees, costs and expenses
incident to appeal) incurred in that action or proceeding in addition to any
other relief to which such party may be entitled.
8. Waivers and Consents.
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(1) Each and every waiver of any provision of
this Agreement must be in writing and signed by each party whose interests are
adversely affected by such waiver.
(2) Unless otherwise expressly provided in a
waiver, no such waiver granted in any one instance will be construed as a
continuing waiver applicable in any other instance.
(3) No waiver by any party to this Agreement
to or of any breach or default by any other party to this Agreement in the
performance by such other party of its obligations hereunder will be deemed or
construed to be a waiver of any breach or default of any other party of the same
or any subsequent obligations hereunder.
(4) Subject to applicable statutes of
limitation, the failure on the part of any party to this Agreement to complain
of any act or failure to act of any other party to this Agreement or to declare
such other party in default, irrespective of how long such failure continues,
shall not constitute a waiver by the non-defaulting party of its rights
hereunder.
(5) Each and every consent by any party to
this Agreement must be in writing signed by the party to be bound thereby. No
consent will be deemed or construed to be a consent to any action except as
described in such writing.
9. SECTION HEADINGS. The Section headings contained in
this Agreement are for reference purposes only and will not affect the
interpretation of this Agreement.
10. GOVERNING LAW. This Agreement will be governed in
all respects, including validity, interpretation and effect by, and will be
enforceable in accordance with, the internal laws of the State of Oregon
without regard to conflicts of laws principles.
11. SEVERABILITY. If any provision of this Agreement is held
to be unlawful, invalid or unenforceable under present or future laws effective
during the term hereof such provision will be fully severable, and this
Agreement will be construed and enforced without giving effect to such unlawful,
invalid or unenforceable provision. Furthermore, if any provision of this
Agreement is capable of two (2) constructions, one of which would render the
provision void, and the other which would render the provision valid, then the
provision will have the meaning which renders it valid.
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12. COUNTERPART EXECUTION. This Agreement may be executed in
multiple counterparts, each one of which will be deemed an original, but all of
which will be considered together as one and the same instrument. Further, in
making proof of this Agreement, it will not be necessary to produce or account
for more than one (i) such counterpart. Provided all parties have signed at
least one counterpart, the execution by a party of a signature page hereto will
constitute due execution and will create a valid, binding obligation of the
party so signing, and it will not BE necessary or required that the signatures
of all parties appear on a single signature page hereto.
13. AMENDMENTS. Each and every modification and amendment
amendment of this Agreement must be in writing and except as otherwise
provided herein, signed by all the parties hereto.
14. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties regarding the subject matter hereof. Any prior
agreements, discussions or representations not expressly contained in this
Agreement will be deemed to be replaced by the provisions hereof, and no party
has relied on any such prior agreements, discussions or representations as an
inducement to the execution hereof.
15. RULES OF CONSTRUCTION. (a) All terms in this Agreement in
the singular and plural will have comparable meanings when used in the plural
and vice-versa unless otherwise specified; (b) the words hereof, herein,
hereunder and words of similar import when used in this Agreement, will refer to
this Agreement as a whole and not any particular provision of this Agreement and
all references to articles, sections and subdivisions thereof are to this
Agreement unless otherwise specified; (c) the words include, includes and
including will be deemed to be followed by the phrase without limitation; (d)
all pronouns and any variations thereof will be deemed to refer to masculine,
feminine or neuter, singular or plural, as the identity of the individual,
individuals, entity or entities may require; (e) all references to documents,
contracts, agreements or instruments will include any and all supplements and
amendments thereto; and (f) all accounting terms not specifically defined herein
will be construed in accordance with generally accepted accounting principles or
generally accepted auditing standards then applied in the United States.
16. FORUM SELECTION. EXCEPT TO THE EXTENT THE COURTS IN NEVADA
DO NOT HAVE SUBJECT MATTER JURISDICTION, FINDER AND TSET DO HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMIT TO THE SOLE AND EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF OREGON AND DO FURTHER IRREVOCABLY AND UNCONDITIONALLY STIPULATE
AND AGREE THAT THE FEDERAL COURTS IN THE STATE OF OREGON OR THE STATE COURTS OF
NEVADA WILL HAVE JURISDICTION TO HEAR AND FINALLY DETERMINE ANY DISPUTE, CLAIM,
CONTROVERSY OR ACTION ARISING OUT OF OR CONNECTED (DIRECTLY OR INDIRECTLY) WITH
THIS AGREEMENT THAT IS NOT SUBJECT TO ARBITRATION, OR TO ENTER A JUDGMENT
CONSISTENT WITH ANY ARBITRATION AWARD. FINDER AND TSET FURTHER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL OBJECTIONS OR DEFENSES TO SAID
JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT SERVICE UPON ANY PARTY HERETO SHALL BE MADE BY DELIVERY VIA PRIORITY
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OVERNIGHT DELIVERY (E.G., FEDEX) AND BY FACSIMILE OF A COPY OF SUCH PROCESS TO
THE ADDRESS OF SUCH PARTY FOR NOTICES TO SUCH PARTY AS SET FORTH IN THIS
AGREEMENT LETTER (OR SUCH DIFFERENT ADDRESS AS SUCH PARTY WILL HEREAFTER SPECIFY
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT). THE FOREGOING CONSENT, IN
ADVANCE, TO THE JURISDICTION OF THE AFOREMENTIONED COURTS AND THE AFOREMENTIONED
METHOD OF SERVICE ARE MATERIAL INDUCEMENTS FOR THE PARTIES HERETO TOP ENTER INTO
THIS AGREEMENT.
[SIGNATURES APPEAR ON NEXT PAGE]
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17. PERSONAL NATURE OF UNDERTAKING. Finder acknowledges that
the engagement of Finder's services hereunder by TSET is personal to Finder, and
such services shall not be delegated or assigned to any other Person by Finder
without TSET's express prior written consent, which may be withheld in TSET's
sole and absolute discretion.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date signed by the parties, as shown below.
TSET, INC.
By: /s/ Xxxxxxx X. Xxxxxx August 9, 2000
----------------------------------
Xxxxxxx X. Xxxxxx, Chairman and Chief
Executive Officer
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx August 13, 2000
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XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx 8/21/00
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ATTACHMENT A
AUTHORIZED FINDER INVESTORS
Summit Partners
Advent International
Xxxxxx Financial
Hewlitt-Packard
Dell Computer
Compaq
IBM
ATT/ATT Financial Services
GE/GE Capital
The Crossroads Group
Xxxxxxx Xxxxxx & Associates
Xxxxxx Capital Partners
The Carlyle Group
NEA New Enterprise Associates
Deutsche Banc Alex. Xxxxx
Columbia Capital
Ferris, Baker, Xxxxx
Xxxx Capital
Banc Boston/Fleet Equity
Xxxxxxxxx Lufkin & Xxxxxxxx
XX Associates
Parthenon Capital
