HORNBLOWER WEEKS
Financial Corporation
INVESTMENT BANKING AGREEMENT
This AGREEMENT (the "Agreement") is made this 1st day of June 2001 by
and between Junum Incorporated, having its principal place of business at 0000
Xxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000 (hereinafter the "Company") and Hornblower
& Weeks Financial Corporation, having its principal place of business at 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (hereinafter the "Consultant," and, together
with the Company, the "Parties").
WHEREAS, the Company desires to retain the Consultant for consulting
services in connection with the Company's business affairs, and the Consultant
is willing to undertake to provide such services as hereinafter fully set forth.
This Agreement shall be binding upon the Parties upon the execution hereof.
WITHESSETH
NOW, THEREFORE, the Parties agree as follows:
1. TERM: This Agreement shall expire twelve (12) months from the date
hereof (the "Term"). The Company shall have the right to extend the Term for an
additional twelve (12) months by delivering written notice to the Consultant not
less than thirty (30) days before the expiration of the Term. In addition, the
Company shall have the right, at any time, to terminate this Agreement upon not
less than 30 days prior written notice.
2. NATURE OF SERVICES: The Company hereby engages Consultant to render
the services hereinafter described during the term hereof on a non-exclusive
basis (it being understood and agreed that Consultant is free to render the same
or similar services to any other entity selected by it). Notwithstanding
anything to the contrary herein, Consultant shall not render any services, or
take any action, in connection with, or which would constitute, capital raising
activities or promotion of the Company's securities. Consultant shall render the
following services in compliance with all federal and state securities laws and
regulations.
(a) Advice concerning on-going strategic corporate planning and long-term
investment policies, including any revision of the Company's business plan.
(b) Evaluation of the Company's managerial, marketing and sales
requirements.
(c) Introduction to Exchanges' and Registered Associations' market
participants.
(d) Introductions to Financial institutions and Money Managers.
(e) Exchanges' and Registered Associations' market services for
the Company's securities.
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3. REPONSIBILITIES OF THE COMPANY: The Company shall provide the
Consultant with all material financial and business information about the
Company as reasonably requested by the Consultant in a timely manner. In
addition, executive officers and directors of the Company shall make themselves
available from time to time for personal consultations with the Consultant
and/or third party designees, subject to reasonable prior notice, pursuant to
the reasonable request of the Consultant.
4. COMPENSATION: For corporate financial advisory services, due
diligence and other services, including without limitation the services set
forth in Paragraph 2 above, we mutually agree that the Company will cause to be
issued and delivered to the Consultant a five-year warrant to purchase 50,000
shares of common stock of the Company for $0.01 per share (which shall contain a
cashless exercise provision) concurrent with the signing of this Agreement. It
is also agreed that the Company will cause to be issued and delivered to the
Consultant five year warrants to purchase 50,000 shares of common stock for
$0.01 (which shall contain a cashless exercise provision) on each of the
ninety-day, one hundred eighty day and two hundred seventy day anniversary of
the signing of this Agreement. It is understood the shares issuable upon the
exercise of the warrants shall have piggyback registration rights (as set forth
in the related warrant agreement). The warrants and shares issuable upon the
exercise of the warrants pursuant to this Paragraph 4(b) will be "restricted
securities" as defined in Rule 144 proregulated under the Securities Act of
1933, as amended (the "Act"), and shall bear appropriate legends to such effect.
5. EXPENSES: The Company shall also reimburse the Consultant for actual
and reasonable out-of-pocket expenses, not to exceed $1,000 in any calendar
month without prior written consent from the Company, for facsimile, postage,
printing, photocopying and entertainment expenses, incurred by the Consultant
and directly required for the performance by the Consultant of its duties
hereunder. The Company shall also reimburse the Consultant for actual and
reasonable out of pocket costs of all travel and related expenses incurred by
the Consultant in connection with the performance of its services hereunder,
provided that all such costs and expenses have been authorized, in advance and
in writing, by the Company. Expenses shall be due and payable when billed to the
Company and after they have been incurred by Consultant.
6. INDEMNIFICAITON: Notwithstanding anything to the contrary herein,
the Parties
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fees and expenses in connection with any action, claim or proceeding relating to
such liabilities) arising out of this transaction by any reason of any breach or
failure of observance or performance or untrue or incorrect statement of any
term, commitment, representation, warranty, covenant or agreement made by the
respective Parties hereunder or by any reason of negligence by a party
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regarding or in accordance with any duty, document, obligation, responsibility,
or other performance of service arising out of this transaction. A party
entitled to indemnification hereunder (an "Indemnified Party") agrees to notify
each party required to indemnify hereunder (an "Indemnifying Party") with
reasonable promptness of any claim asserted against it in respect to which any
indemnifying Party may be liable under this Agreement, which notification shall
be accompanied by a written statement setting forth the basis of such claim and
the manner of calculation thereof. An Indemnifying Party shall have the right to
defend any such claim at its or his own expense and with the counsel of its or
his choice; provided, however, that such counsel shall be approved by the
Indemnified Party prior to engagement, which approval shall not be unreasonably
withheld or delayed; and provided further, that the Indemnified party may
participate in such defense, if it so chooses, with its own counsel and at its
own expense.
7. COMPLETE AGREEMENT: This Agreement contains the entire Agreement
between the Parties with respect to the contents hereof and supersedes all prior
agreements and understandings between the Parties with respect to such matters,
whether written or oral. Neither this Agreement, nor any term or provision
hereof may be changed, waived, discharged or amended in any manner other than by
any instrument in writing, signed by the Party against which the enforcement of
the change, waiver, discharge or amendment is sought.
8. COUNTERPARTS: This Agreement may be executed in two or more
counterparts, each of which shall be an original but all of which shall
constitute but one Agreement.
9. ARBITRATION: The Parties hereby agree to submit any controversy or
claim arising out of or relating to this Agreement to final and binding
arbitration administered by the American Arbitration Association ("AAA") under
its Commercial Arbitration Rules, and further agree that immediately after the
filing of a claim as provided herein they shall in good faith attempt mediation
in accordance with the AAA Commercial Mediation Rules; provided, however that
the proposed mediation shall not interfere with or in any way impede the
progress of the arbitration. The Parties also agree that (i) the AAA Optional
Rules for Emergency Measures of Protection shall apply to any proceedings
initiated hereunder, (ii) the arbitrator shall be authorized and empowered to
grant any remedy or relief permitted by law which the arbitrator deems just and
equitable in nature, including but not limited to, specific performance,
injunction, declaratory judgment and other forms of provisional relief in
additional to a monetary award, (iii) the arbitrator may make other decisions
including interim, interlocutory or partial findings, orders and awards to the
full extent provided in Rule 45 of the Commercial Arbitration Rules, and (iv)
the arbitrator shall be empowered and authorized to award attorneys' fees to the
prevailing party in accordance with Rule 45.
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10. SURVIVAL: Any termination of this Agreement shall not, however,
affect the on-going provisions of this Agreement, which shall survive such
termination in accordance with their terms.
11. DISCLOSURE: Any financial advice rendered by the Consultant
pursuant to this Agreement may not be disclosed publicly in any manner without
the prior written approval of the Consultant unless required, in the opinion of
the Company or its counsel, by any law, regulation, statute, court, government
or regulatory agency. The Company and Consultant shall jointly announce the
execution of this Agreement within three business days of its execution. All
non-public information given to the Consultant by the Company will be treated by
the Consultant as confidential information, and the Consultant agrees not to
make use of such information other than in connection with its performance of
this Agreement; provided, however, that any such information may be disclosed if
required by any court or governmental or regulatory authority, board or agency.
"Non-public information" shall not include any information which (i) is or
becomes generally available to the public other than as a result of a disclosure
by the Consultant, (ii) was available to the Consultant prior to its disclosure
to the Consultant by the Company, provided that such information is not known by
the Consultant to be subject to another confidentiality agreement with another
party, or (iii) becomes available to the Consultant on a non-confidential basis
from a source other than the Company, provided that such source is not bound by
a confidentiality agreement with the Company.
12. 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 New York without regard to the conflicts of laws principles thereof
or the actual domiciles of the Parties. Any arbitration or mediation inherited
by the parties as provided herein shall be filed and maintained exclusively with
the American Arbitration Association's offices located in New York City and the
Parties further agree that the provisions of paragraph 9, above, may be enforced
by any court of competent jurisdiction, and the party seeking enforcement shall
be entitled to an award of all costs, fees and expenses, including attorney's
fees, to be paid by the party against whom enforcement is ordered.
13. SEVERABILTIY: Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law. If any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule, such invalidity,
illegality or unenforceability will not effect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained.
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14. CHOICE OF VENTUE: This Agreement shall be governed by, construed,
interpreted and the rights of the Parties determined in accordance with the laws
of the state of New York, without reference to the principles of conflicts of
law. Any and all conflicts of legal proceedings are agreed to be filed in the
courts of the state of New York, sitting in New York County only, and in no
other governing jurisdiction.
15. MISCELLANEOUS:
(a) All final decisions with respect to consultation, advice and
services rendered by the Consultant to the Company shall rest
exclusively with the Company, and Consultant shall not have
any right or authority to bind the Company to any obligation
or commitment.
(b) Consultant agrees not to sell, loan, pledge, assign, transfer,
encumber, distribute, grant or otherwise dispose of, directly
or indirectly, or offer, contract or otherwise agrees to do
any of the foregoing, (a) any shares of the common stock (the
"Common Stock") of the Company, (b) any options or warrants to
purchase any shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common
Stock, directly or indirectly by the Consultant and/or its
Affiliates, otherwise that (i) with the prior written consent
of the Company, or (ii) sales of Common Stock pursuant to
which all of the shares sold are delivered to the purchaser
thereof within three business days of such sale. The foregoing
restriction is expressly agreed to preclude the Consultant and
its Affiliates from engaging during the Term in any hedging or
other transaction which is designed to, or reasonably expected
to lend to or result in the Consultant or its Affiliates
maintaining a "short" position (or any similar position) for
any period longer than three business days, including if such
short position is maintained by any Affiliate, or any other
person for the benefit or account of, or at the request of,
the Consultant.
Agreed and Accepted on June 1, 2001 by and between:
Junum Incorporation Hornblower & Weeks Financial Corporation
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxx Xxxxxx
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Xxxxx X. Xxxxxxx Xxxx Xxxxxx
Chairman President
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