Exhibit 10.19
ENGAGEMENT LETTER
December 23, 1999
Xxxxxxx Xxxxx
Chief Executive Officer
Wall Street Strategies Corporation
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Re: Wall Street Strategies Corporation
Dear Xx. Xxxxx:
This engagement letter (the "Engagement Letter" or, this "Agreement")
shall serve to set forth the terms upon which Xxxxxx Xxxxxxx & Assoc., Inc.
("JCA"), will render to Wall Street Strategies Corporation together with its
subsidiaries (the "Company") certain investment banking services. On the basis
of several discussions held between JCA and the Company's representatives, and
subject to the terms and conditions of this Engagement Letter, JCA and the
Company agree that JCA is engaged to act as the Company's Investment Banker and
Placement Agent to assist the Company with respect to matters relating to the
financing of the Company's businesses, recapitalizations and mergers and
acquisitions ("Projects"), pursuant to the following terms and conditions:
1. Terms of Engagement; Exclusive Agency. The term of the Investment
Banking Engagement established hereby is eighteen (18) months from the date of
completion of at least seven and a half million dollars ($7,500,000) of the
initial project contemplated in Section 5 herein (the "Term"). Unless waived in
writing by JCA, JCA shall be the Company's exclusive agent with respect to
investment banking services relating to any Project contemplated by the Company
during the Term. During the Term, the Company agrees not to engage any other
investment banking firm or financial intermediary which provide financing, or to
directly contact institutions regarding and/or relating to their investment
banking services. JCA will have the first right of first
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December 23, 1999
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refusal on any private or public financing of the Company's debt or equity
during the Term. Prior to proceeding with any private or public offering of its
securities, the Company will provide notice to JCA in writing of its intention
to make such offering, and shall afford JCA a period of thirty (30) days from
the date of receipt of such notice by JCA for JCA to determine to act as the
placement agent, underwriter or principal investor in such offering. In the
event that JCA fails to respond timely in writing to the Company exercising its
right of first refusal within such thirty (30) day period, the Company shall be
free to pursue said offering without the services of JCA. In the event that any
material term or terms of the proposed offering changes subsequent to the
issuance of a notice contemplated hereby to JCA, the Company shall be obligated
to send a new notice offering JCA the opportunity to participate in the revised
offering in accordance with the procedure set forth hereinabove. Notwithstanding
any other provision of any offering proposed to be made by the Company, in the
event that JCA exercises its right of first refusal, the Company shall be
obligated to pay JCA a non-refundable deposit of $50,000 at the time of such
exercise. This non-refundable deposit shall be offset against any fee or expense
reimbursement payable to JCA under the terms of the proposed financing.
2. Termination.
(a) The Company may terminate this Agreement for cause. In the
event of such termination, JCA shall be entitled to all items of compensation
and expenses (including any amounts deferred) payable to JCA pursuant hereto as
of the date of termination. For purposes of this Agreement, "cause" shall be
defined as any material breach of this Engagement Letter by JCA which is not
cured within 30 days after written notice of such breach is given by the Company
to JCA. In addition, should JCA fail to procure investors before the expiration
of the Initial Offering Period (defined in Section 5(d)) or extension thereof
for securities of the Company totaling no less than four million dollars
($4,000,000) at current market value, then the Company may terminate this
Agreement upon payment of all items of compensation and expenses (including any
amounts deferred) payable to JCA pursuant hereto as of the date of termination.
(b) JCA may terminate this Agreement at any time, without
advance notice, with or without cause, effective immediately upon written notice
thereof in which event the Company shall have no further liability or obligation
to JCA.
(c) If the Company terminates this Agreement in a manner other
than as described in paragraph 2(a) and 2(d), the Company shall be obligated to
pay immediately to JCA a breakup fee of $50,000 in addition to all other items
of compensation and expenses (including any amounts deferred) payable to JCA
pursuant hereto as of the date of termination; provided that notwithstanding
such termination, any transactions completed during the eighteen (18) months
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December 23, 1999
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following the termination of this Agreement between the Company and any investor
introduced to the Company by JCA, will obligate the Company to pay the
compensation to JCA in the amount set forth in paragraph 5(b)(i) below.
(d) If the Company terminates this agreement without cause
prior the expiration of the Initial Offering Period or any extension thereof,
the Company shall be obligated to immediately pay a break-up fee of three
hundred thousand dollars ($300,000) and forty percent (40%) of the warrants
which would have been earned for the maximum raise contemplated in Section 5.
The Company and JCA agree that the foregoing fees are an acceptable measure of
compensation to JCA for the contemplated Private Placement. Such fee shall be in
addition to payment for expenses and fees.
3. Representations and Indemnification. The Company represents and
warrants to JCA that:
(a) the Company will not cause or knowingly permit any action
to be taken in connection with any Project which violates the Securities Act of
1933 (including Regulation D thereunder), the Securities Exchange Act of 1934,
the Investment Company Act of 1940, or any state securities laws;
(b) all information and statements provided by the Company in
connection with all Projects will be true and correct;
(c) current Company management, as disclosed to JCA, will
continue in place after the Initial Project for a reasonable period of time;
(d) the financial statements provided by the Company to JCA
fairly reflect the financial condition of the Company and the results of its
operations at the time and for the periods covered by such financial statements;
(e) the Company is not aware of any facts adversely affecting
the financial condition of the Company;
(f) the Company has prepared and delivered to JCA its most
recent projections of sales, earnings and cash flows; and
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December 23, 1999
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(g) with respect to each Project (including the Initial
Project, as described below), the Company will execute a placement agreement or
other type of definitive agreement as may be appropriate for each Project
containing mutual indemnification and other terms and conditions customary for
agreements of that type, acceptable in form and substance to JCA and the
Company; but failure to execute such agreement shall not relieve the Company of
its obligations to reimburse JCA for all costs and expenses incurred by JCA in
connection with the contemplated Project to the extent provided herein.
(h) JCA represents to the Company that JCA is registered with
the National Association of Securities Dealers (NASD) and Securities Investor
Protection Corporation (SIPC). Information on JCA can be accessed via the
internet at xxx.XXXXX.xxx. JCA is in good corporate standing with the State of
Florida, the NASD, and the Securities and Exchange Commission (SEC). JCA has the
ability to execute the project(s) contemplated herein.
4. Conditions of Performance by JCA, Due Diligence by JCA. During the
Term, JCA shall be authorized to conduct necessary due diligence in connection
with Projects, including, but not limited to, inspection of the Company's
facilities and operations, review of current financial statements and
projections, interviews with the Company's advisors, interviews with the
Company's senior management and other employees and contacts with the Company's
customers, suppliers and sources of credit. This engagement is specifically
subject to and conditional upon successful completion of these due diligence
procedures, the results of which shall be satisfactory to JCA in its sole
determination. JCA agrees that it will maintain the confidentiality of the
Company's financial information regarding plans, strategies, cash flows, sales
and earnings estimates; any such dissemination of financial information shall,
if requested by the Company, be made under the protection of a confidentiality
agreement reasonably and mutually acceptable to JCA and the Company. JCA intends
to effect each Project, including the Initial Project, as soon as practicable
after the Company has complied with all applicable statutes, laws, rules and
regulations and conclusion of all due diligence; provided, however that JCA
reserves the right not to proceed with any Project, if, in its sole judgment,
market conditions are not suitable for the completion of such Project or
information comes to its attention relating to the Company, its management or
its position in the industry which could, in JCA's sole judgment, preclude a
successful completion of any Project.
5. Initial Project. The initial Project for which JCA is being engaged
(the "Initial Project") is the following:
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December 23, 1999
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(a) JCA shall act as the Company's Investment Banker and
Placement Agent in a private placement offering (the "Private Placement" or the
"Financing"). The Company proposes to issue up to $10,000,000 of a proposed
issue of securities (the "Securities"), the percentage such Securities represent
of the equity securities of the Company on a post-offering basis shall be
determined by JCA and the Company after the execution hereof. The stated
percentages will include those Securities issued to the investors in the Private
Placement as well as those Securities issued to JCA as compensation pursuant
hereto. The offering will be made on a "best efforts, all or none" basis with
respect to the first $1,000,000 (the "Minimum Amount"), and on a "best efforts"
basis with respect to the balance.
(b) Compensation to JCA - JCA shall be entitled to receive the
following items of compensation for the services rendered hereunder.
(i) Placement Fee. JCA shall be entitled to receive a
Placement Fee equal to nine percent (9%) of total gross proceeds raised from the
Financing.
(ii) Warrants. As additional consideration, the
Company will sell to JCA, at each closing under the Private Placement, a five
year warrant (exercise period to begin after one year after date of issuance) to
purchase a number of shares of Common Stock equal to forty percent (40%) of the
shares of Common Stock or equivalents placed in the Private Placement (the
"Warrant"). The purchase price of the Warrant shall be $.0001 times the number
of shares available for purchase pursuant to the Warrant, and the exercise price
of fifty percent (50%) of the total warrants sold shall be one-hundred and
twenty percent (120%) of the offering price of the shares in the Private
Placement not to exceed five dollars and fifty cents ($5.50). The remaining
fifty percent (50%) of the total warrants sold shall be one-hundred and thirty
percent (130%) of the offering price of the shares in the Private Placement not
to exceed five dollars and fifty cents ($5.50). The Warrant shall contain
standard demand registration and piggyback registration rights and anti-dilution
provisions for below market-price issuances, stock splits, stock dividends,
re-combinations, reorganizations, a cashless exercise provision, and shall be
acceptable in form and substance to JCA.
(iii) Merger or Sale of Assets. In addition, if prior
to sale of Securities in the Private Placement the Company merges or sells all
or substantially all of its assets, or sells a block of stock equal to or in
excess of twenty percent (20%) of the issued and outstanding shares of equity
securities of the Company (determined prior to issuance), and the offering
contemplated hereby is abandoned by the Company, JCA shall be entitled to
receive the following break up fee from the Company: a cash fee of $25,000 or
five percent (5%) of the outstanding value (not to exceed $300,000) of the
transaction, whichever is greater. The Company and JCA agree that the
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Wall Street Strategies
December 23, 1999
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foregoing fee is an acceptable measure of compensation to JCA for the
contemplated Private Placement. Such cash fee shall be in addition to payment
for expenses and fees discussed.
(c) Expenses. The Company is responsible for the preparation
of the private placement documents, legal, printing, accounting, travel and
accommodations expenses, background searches regarding the Company and its
officers and directors as well as Blue Sky qualification of the Securities and
related filing and registration fees and expenses; such Blue Sky legal services
will be performed by JCA's counsel for a fixed fee of $15,000 (plus such fees
and expenses). JCA will incur expenses in connection with the Private Placement
including due diligence expenses, counsel, and other expenditures. In
consideration of the undertaking by JCA to use its best efforts herein, the
Company agrees to pay three percent (3%) of the gross proceeds of the Private
Placement as a non-accountable expense reimbursement to JCA. Fifty thousand
dollars ($50,000) of the non-accountable expense reimbursement will be paid in
the form of a non-refundable deposit, with twenty-five thousand dollars
($25,000) payable upon signing this Engagement Letter and twenty-five thousand
dollars ($25,000) payable at the completion of the sale ready Private Placement
Memorandum. The remaining amount is to be paid upon each closing of the Private
Placement.
(d) Placement Agency Agreement. The Company and JCA shall
promptly negotiate a definitive Placement Agency Agreement with respect to this
Initial Project. This Placement Agency Agreement shall contain language
stipulating that JCA shall complete the offering within forty-five (45) days
from the date of the Private Placement Memorandum being sales ready (the
"Initial Offering Period"); the Company and JCA may mutually agree to extend the
Initial Offering Period for an additional forty-five (45) days. Furthermore, the
form and substance of the Placement Agency Agreement is expected to be similar
to previous Placement Agency Agreements which JCA has been a party thereof.
6. Notice. All notices and other communications required or permitted
to be given under this Engagement Letter shall be in writing and either
personally delivered; sent by first class certified mail, return receipt
requested, postage prepaid; sent by overnight delivery via a nationally
recognized delivery service; or transmitted by confirmed facsimile transmission,
to the respective party at the following address or fax number:
To the Company at: Wall Street Strategies Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxxxxxxx No.: 000-000-0000
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December 23, 1999
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To JCA at: Xxxxxx Xxxxxxx & Assoc., Inc.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxxxxxx No.: (000) 000-0000
or, as to either party, to such other address and/or facsimile number as such
party designates by written notice to the other party or parties. Notice shall
be deemed given when personally delivered or transmitted by facsimile; the day
after delivery to such overnight delivery services; and three business days
after deposit with the U.S. Postal Service.
7. Choice of Laws and Arbitration. This Engagement Letter shall be
construed pursuant to the laws of the State of Florida. Any controversy arising
hereunder shall be resolved by binding arbitration pursuant to the rules of the
American Arbitration Association. Proceedings arising from a controversy(s)
shall be conducted in Atlanta, Georgia. The non-prevailing party shall pay all
costs of arbitration.
If this Engagement Letter correctly sets forth our agreement, please so
indicate by signing and returning the enclosed copy of this letter.
Very truly yours,
XXXXXX XXXXXXX & ASSOC., INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx, President
AGREED TO AND ACCEPTED
this ___ day of December, 1999
WALL STREET STRATEGIES CORPORATION
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Xxxxxxx Xxxxx
Chief Executive Officer
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