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EXHIBIT 10.93
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AGREEMENT
Agreement made as of September 20, 2000, by and between
USURF America, Inc.
An Nevada Corporation ("Company"),
with its principal offices at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000
and
CENTEX SECURITIES, INC.,
a California Corporation, ("Centex"),
with its principal offices at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xx XxxXx, XX
00000.
WITNESSETH
WHEREAS, Company requires expertise in the area of internal financial
consulting; and
WHEREAS, Centex desires to act as an internal financial consultant to
Company to assist in enhancing the long term value of Company's capital
stock and market valuation and assist in locating private financing for
Company's business, as a finder.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein and subject specifically to the conditions
hereof, and intending to be legally bound thereby, the parties agree as
follows:
1. Certain Definitions - When used in this Agreement, the following terms
shall have the meanings set forth below:
1.1 Extraordinary Expenses - expenses that are beyond those expenses
that are usual, regular, or customary in the conduct of in-house activities in
fulfillment of the scope of this agreement.
1.2 Equity - cash, securities or liquid assets, specifically
excluding real property.
1.3 Payment or Payable in Kind - distribution of proceeds of a
transaction in the same type and form as was given as valuable consideration
for the transaction.
2. Company Representations - Company hereby represents, covenants and
warrants to Centex as follows:
2.1 Corporate Organization, Etc. - Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State mentioned above and has full power and authority to carry on its
business as it is now being conducted and to own the properties and assets
it now owns.
2.2 Public Company - Company is a reporting company as defined by
the Securities Act of 1934 and is current in required filings. The common stock
of company is listed as UAX on the American Stock Exchange.
2.3 Authorization - Company and its' signatories herein have full
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
2.4 No Violation - Neither the execution and delivery of the
Agreement nor the consummation of the transactions contemplated hereby will
violate any provision of the charter or by-laws of Company or, violate, or be in
conflict with, or constitute a default under, any agreement or commitment
to which Company is a party, or violate any statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority.
2.5 Financial Statements - Company has heretofore delivered to
Centex a consolidated financial statement including balance sheet, income
statement and statement changes in owners equity of Company as of the fiscal
year ended, and subsequent quarterly financial statements. Such consolidated
financial statements and the notes thereto are true, complete and accurate
and fairly represent the consolidated assets, liabilities and financial
condition of Company and each Company subsidiary as at the respective dates
thereof; all in accordance with generally accepted accounting principles
consistently applied throughout the periods involved.
2.6 Agreement in Full Force and Effect - All contracts, agreements,
plans, leases, policies and licenses referenced herein to which Company is a
party are valid and in full force and effect.
2.7 Litigation - Except as described in Company's 10-QSB for the
period ended June 30, 2000, a copy of which has been delivered to Centex,
there is no action, suit, inquiry. proceeding or investigation by or before any
court or governmental or other regulatory or administrative agency or
commission pending or, to the best knowledge of Company threatened against
or involving Company, or which questions or challenges the validity of this
Agreement and its' subject matter; and Company does not know or have any
reason to know of any valid basis for any such action, proceeding or
investigation.
2.8 Consents - No consent of any person, other than the signatories
hereto, is necessary to the consummation of the transactions contemplated
hereby, including, without limitation, consents from parties to loans,
contracts, leases or other agreements and consents from governmental
agencies, whether federal, state, or local.
2.9 Representation - Company hereby acknowledges that Centex has and
will rely upon the documents, instruments and written information furnished to
Centex Securities by the Company's officers, or designated employees, and
warrants that all representations and statements so provided are true and
complete and accurate. Company agrees to indemnify, hold harmless, and
defend Centex, its officers, directors, agents and employees, at Company's
expense for any proceeding or suit which may arise out of any inaccuracy or
incompleteness of any such material or written information supplied to Centex.
3. Centex Services to be Rendered - Services to be rendered by Centex are
as follows:
3.1 Best Efforts - Centex shall devote such time and best efforts as
may be reasonably necessary to perform its internal financial consulting
services on behalf of Company. Centex cannot guarantee results on behalf of
Company, but shall pursue all avenues available through its' network of
financial contacts.
3.2 Assistance in Finding Sponsorship - Centex has a close
association with numerous broker/dealers and investment professionals across
the country and will contact and present Company to them. Centex shall use
their contacts in the brokerage community to assist the Client with
establishing relationships with securities dealers, to provide the most
recent corporate information to interested securities dealers on a regular
basis in support of Company's business objective to establish a nationwide
network of securities dealers that is continually expanded.
3.3 Research Information (OPTIONAL) - Centex will request at
Company's expense research as described herein by CSK Research, a third party
independent company. CSK will disseminate accurate research information on
Company which will contain current corporate information that can be
incorporated into material sent to shareholders and others on an as-needed
basis. The information would include current developments, corporate goals,
management's intentions for future growth and a variety of other pertinent
information. Company shall not be required to honor the request of Centex
hereunder.
3.4 Media and Public Relations Coordination - Centex will assist in
coordination with financial public relation firms and news media sources.
3.5 Preparation of Securities Related Documents -Centex will
provide, if requested by Company, advice and consultation with respect to the
review of the preparation of a Business Plan. It will include a complete
corporate history, background information on the corporate structure and
management, current operations information any projections resulting from the
management goals. Input to support preparation, and review of completed
documents will be provided by Centex. The use of out-of-house experts and
professionals by Centex is permitted subject to approval by Company.
4 Compensation to Centex
4.1 Initial Fee - Company shall pay Centex an upfront initial fee of
450,000 restricted shares of Company common stock. All of the shares
issued to Centex shall possess piggy-back registration rights and Company
hereby agrees to include all of such shares in its currently pending
Registration Statement on Form S-1 (SEC File No. 333-96027). The
registration rights granted hereby shall apply to such shares upon any
transfer thereof prior to their registration.
4.2 Monthly Fee - $0
4.3 Additional Fees -Company and Centex shall mutually agree upon
any additional fees which Company may pay in the future for services rendered
by Centex under this Agreement.
4.4 Optional Form of Payment - Centex may, at the time for each
payment and at its' sole option, elect to receive all or a portion of said
fees in the form of securities, equity, or financing instruments issued by
Company to Centex on terms agreed upon by Company in writing.
4.5 Extraordinary Expenses - Extraordinary expenses of Centex
shall be submitted to Company for approval prior to expenditure and, if
approved, shall be paid by Company, within ten (10) business days of receipt of
Centex request for payment.
4.6 Finder's Fees - In the event Company and any third party funding
sources(s) or underwriter(s) introduced by Centex, arrive at a mutual
funding or underwriting agreement, Company hereby agrees to pay Centex a
finder's fee of 5% of the gross proceeds derived from such funding, payable
upon the consummation of such funding or underwriting, even though the
terms of this agreement may have expired.
4.6.1 Company hereby directs and authorizes such funding sources(s)
(s) or underwriter(s) to pay said finder's fee directly to, or to direct a third
party escrow, if applicable, to make payment directly to Centex.
4.6.2 In the event of a sccurities offering where the underwriter is
required to reduce its proposed compensation in order to satisfy the NASD's
Rules of Fair Practice or the rules promulgated by a State securities
commissioner because said advisory fees has been deemed "underwriting
compensation", said finder's fees shall be reduced as necessary to permit
the underwriter to obtain such approval or approvals of its underwriting
compensation, but in no event shall said finder's fee be reduced below 20%
of the total underwriting compensation, exclusive of selling commission and
selling expenses without prior written consefit of Centex which may not be
unreasonably withheld.
4.6.3 Centex may, at its sole option, elect to receive all or a
portion of said finder's fee as payment in kind, i.e., prorate in the same
fonn and
type of securities, equity, or financing instruments issued to the funding
source or underwriter by Company. In the event the exercise of this option
results in additional expense over and above the expenscs of the funding
and/or underwriting then the additional expenses shall be borne by Centex.
In addition the exercise of this option by Ccntex shall not impede or
otherwisc have a negative effect on the funding or underwriting.
4.7 Merger Fees - In the event Company and any merger entity arrive
at a merger agreement resulting from Centex introduction and efforts, Company
hereby agrees to pay Centex a finder's fee of 5% payable in kind in the
same form and type, including as to restriction or registration, of
securities, equity, or financing instruments issued to consummate the merger.
4.7.1 Said finder's fee(s) is/are earned at the time of
consummation of such merger and are due and payable on the same schedule for
payment as contained in the merger agreement to pay such finder's fees
directly to, or to direct a third party escrow, if applicable, to make
payment directly to Centex.
4.8 Interest on Funds Due - Company shall pay interest on all
payments in arrears due Centex, at the rate of 10% per annum.
5. Indemnification - Each party shall save the other harmless from and
against and shall indemnify the other for any liability, loss, and costs,
expenses or damages howsoever caused by reason of any injury (whether to
body, property, personal or business character or reputation) sustained by
any person or to any person or property by reason of any act neglect,
default or omission of it or any of its agent, employees, or other
representatives arising out of or in relation to this Agreement. Nothing
herein is intended to nor shall it relieve either party from liability for
its own act, omission or negligence. All remedies provided by law or in
equity shall be cumulative and not in the alternative.
6. Confidentiality - Centex and Company each agree to provide reasonable
security measures to keep information confidential whose release may be
detrimental to the business. Centex and Company shall each require their
employees, agents, affiliates, subcontractors, other licensees, and others
who will properly have access to the information through Centex and Company
respectively, to first enter into appropriate non-disclosure agreements
requiring the confidentiality contemplated by this Agreement in perpetuity.
7.1 Amendment and Modification - Subject to applicable law, this
Agreement may be amended modified .and supplemented by written agreement of
Centex and Company or by their duly authorized respective officers.
7 .2 Waiver of Compliance - Any failure of Centex, on the one hand,
or Company, on the other, to comply with any obligation. agreement or
condition herein may be expressly waived in writing, but such waiver of
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
7.3 Expenses, Transfer Taxes, Etc. - Whether or not the transaction
contemplated by this Agreement shall be consummated, Centex agrees that all
fees and expenses incurred by Centex in connection with this Agreement,
shall be borne by each Party, including, without limitation as to Centex or
Company, all fees of counsel and accountants.
7.4 Other Business Opportunities - Except as expressly provided
in this Agreement, each party hereto shall have the right independently to
engage in and receive full benefits from business activities. In the case of
business prior to this Agreement or, if such activities are proposed,
within 10 days prior to engagement therein. The doctrines of "corporate
opportunity" or "business opportunity" shall not be applied to any other
activity, venture or operation of either party.
7.5 Compliance with Regulatory Agencies - Each party represents to
the other party that all actions, direct or indirect, taken by it and its'
respective agents, employees and affiliates in connection with this
agreement and any financing or underwriting hereunder shall conform to all
applicable Federal and State Securities Laws.
7.6 Notices - Any notices to be given hereunder by any party to the
other may be effected by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices
shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but any party may change his
address by written notice in accordance with this subsection. Notices
delivered personally shall be deemed communicated as of actual receipt;
mailed notices shall be deemed communicated as of three (3) days after
mailing.
7.7 Assignment - This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor
any of the rights, interest or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties, except by operation of law.
7.8 Delegation - Neither party shall delegate the performance of its
duties under this Agreement without the prior written consent of the other
party.
7.9 Publicity - Neither Centex nor Company shall make or issue, or
cause to be made or issued, any announcement or written statement concerning
this Agreement or the transactions contemplated hereby for dissemination to the
general public without the prior consent of the other party. This provision
shall not apply, however, to any announcement or written statement required
to be made by law or the regulations of any federal or state governmental
agency, except that the party required to make such announcement shall,
whenever practicable, consult with the other party concerning the timing
and consent of such announcement before such announcement is made.
7.10 Governing Law - This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
laws of the State of California, without regard to its conflict of law
doctrine. Company and Centex agree that if action is instituted to enforce
or interpret any provision of this Agreement then jurisdiction and venue
shall be San Diego County, California.
7.11 Counterparts - This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.12 Headings -The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof or
affect in any way the meaning or interpretation of this Agreement.
7.13 Entire Agreement - This Agreement, including any Exhibits
hereto, and the other documents and certificates delivered pursuant to the
term hereof, sct forth the entire Agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto.
7.14 Third Parties - Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or corporation other than
the parties hereto and their successors or assigns, any rights or remedies
under or by reason of this Agreement.
7.15 Attorneys' Fees and Costs - If any action is necessary to
enforce and collect upon the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and costs, in addition to any
other relief to which that party may be entitled. This provision shall be
construed as applicable to the entire agreement.
7.16 Severability - If any part of this Agreement is found, or
deemed by a court of competent jurisdiction, to be invalid or unenforceable,
that part shall be severable from the remainder of this Agreement.
7.17 Further Assurances - Each of the parties agrees that it shall
from time to time take such actions and execute such additional instruments as
may be reasonably necessary or convenient to implement and carry out the
intent and purpose of this Agreement.
7.18 Right to Data After Termination - After termination of this
Agreement each party shall be entitled to copies of all information acquired
hereunder as of the date of termination and not previously furnished to it.
7.19 Relationship of the Parties - Nothing contained in this
Agreement shall be deemed to constitute either party the partner of the other,
nor, except as otherwise herein expressly provided, to constitute either party
the agent or legal representative of the other, nor to create any fiduciary
relationship between them. It is not the intention of the parties to
create, nor shall this Agreement be construed to create any commercial or
other partnership. Neither party shall have any authority to act for or to
assume any obligation or responsibility on behalf of the other party,
except as otherwise expressly provided herein. The rights, duties,
obligations and liabilities of the parties shall be several and not joint
or collective. Each party hereto shall be responsible only for its
obligations as herein set out and shall be liable only for its share of the
costs and expenses as provided herein. Each party shall indemnify, defend
and hold harmless the other party, its directors, officers, and employees
from and against any and all losses, claims, damages and liabilities
arising out of any act or any assumption of liability by the indemnifying
party, or any of its directors, officers or employees, done or undertaken,
or apparently done or undertaken, on behalf of the other party, except
pursuant to the authority expressly granted herein or otherwise agreed in
writing between the parties.
8. Term of Agreement and Termination - This Agreement shall be effective
upon execution, and shall continue for (SIX MONTHS) unless terminated
sooner, by either party, upon giving to the other party thirty (30) days
written notice, after which time this Agreement is terminated. Centex shall
be entitled to any finders fees for funding or underwriting commitments
entered into within one year after the termination of this Agreement if
said funding or underwriting, as evidenced in writing, was the result of
Centex efforts prior to the termination of this agreement.
9. Centex Securities will provide Company with names, addresses, phone and
fax numbers for the database of parties contacted concerning this program.
10. In addition to the compensation referred to in paragraph four Centex
will be entitled to any and all additional compensation for any related
transaction(s) only if such transaction(s) are identified and communicated
to at the point of inception.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
USURF AMERICA, INC. CENTEX SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
Xxxxx Xxxxxx Xxxxx X. Xxxxxxx
President President-CEO
