Exhibit 10.25
CONFIDENTIAL
DRAFT - SUBJECT TO COMMITMENT COMMITTEE APPROVAL
November 27, 2002
Xx. Xxxxxxx Xxxxxxx
Adzone Research, Inc.
0000-00 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
This financial advisory and investment banking agreement (the "Agreement") is
made and entered into as of the date above (the "Effective Date"), by and
between Spartan Securities Group, Ltd., a Florida Limited Partnership
("Spartan") and Adzone Research, Inc., a Delaware corporation, and its
subsidiaries, affiliates, portfolio companies and/or investments (collectively
hereinafter the "Company"), for the purpose of defining and acknowledging the
terms of this Agreement.
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Exclusivity. The Company hereby engages Spartan on an exclusive basis for
the term specified in Paragraph 2 hereof to render services to the Company
as its corporate finance consultant, financial advisor and investment
banker upon the terms and conditions set forth herein.
2. Term and Termination. This Agreement shall be effective for a period of one
year (the "Initial Term"), renewable for an additional year, commencing
upon the Effective Date of this Agreement and may be extended as the
parties shall mutually agree in writing (the "Term"), subject to the
establishment of arrangements for additional compensation and other
appropriate terms for such extension. Beginning 60 days after the Effective
Date of this Agreement, either party may terminate Spartan's engagement
hereunder at any time by giving the other party at least 30 days prior
written notice, subject to the provisions of Paragraph 4 through 18, all of
which shall survive any termination of this Agreement, except the monthly
retainer.
3. Services to be Provided. During the Term of this Agreement, Spartan shall
provide the Company with such regular and customary consulting advice as is
reasonably requested by the Company, provided that Spartan shall not be
required to undertake duties not reasonably within the scope of the
financial advisory or investment banking services contemplated by this
Agreement. It is understood and acknowledged by the parties that the value
of Spartan advice is not readily quantifiable, and that Spartan shall be
obligated to render advice upon the request of the Company, in good faith,
but shall not be obligated to spend any specific amount of time in so
doing. Spartan's duties may include, but will not necessarily be limited
to, providing recommendations and assisting in the following:
(a) Arranging, on behalf of the Company, at appropriate times, meetings
with securities analysts of investment banking firms;
(b) Rendering advice with regard to internal operations, including:
i. the formation of corporate goals and their implementation;
ii. the Company's financial structure and its divisions or
subsidiaries;
iii. securing, when and if necessary and possible, additional
financing through banks and/or insurance companies; and
iv. corporate organization and personnel; and
(c) Rendering advice with regard to any of the following corporate finance
matters:
i. changes in the capitalization of the Company;
ii. changes in the Company's corporate structure;
iii. redistribution of shareholdings of the Company's stock;
iv. sales of securities in private transactions;
v. alternative uses of corporate assets; and
vi. structure and use of debt; and
(d) Rendering advice or assistance with regard to any of the following
merger or acquisition activities:
i. the acquisition and/or merger of or with other companies;
ii. divestiture or any other similar transaction; and
iii. the sale of the Company itself (or any significant percentage,
assets, subsidiaries or affiliates thereof); and
(e) Rendering advice and/or assistance with regard to any of the following
capital raising activities:
i. bank financing or any other financing from financial institutions
or individuals (including but not limited to revolving credit
facilities, lines of credit, term loans, rediscounted credit
facilities, senior and junior loans, whether collateralized or
unsecured, etc.);
ii. act as Placement Agent for any private offering of the Company's
securities; and
iii. act as underwriter in any public offering of the Company's
securities.
4. COMPENSATION. In consideration for the services rendered by Spartan to the
Company pursuant to this Agreement (and in addition to the expenses
provided for in Paragraph 7 hereof), the Company shall compensate Spartan
as follows:
(a) INITIAL RETAINER. The Company shall pay Spartan an initial
non-refundable retainer in the amount of 300,000 common shares of
stock upon execution of this Agreement.
(b) MONTHLY RETAINER. Upon completion of a financing not less than
$350,000.00, the Company shall pay Spartan a monthly consulting fee of
two thousand five hundred dollars ($2,500.00) per month during the
term of this Agreement moving up to ($3000.00) per month upon funding
of not less than $500,000.00, the first payment of which shall be due
on the first day of the month immediately following the completion of
a financing not less than $350,000.00.
(c) MERGER AND ACQUISITION TRANSACTIONS. If any Transaction (as
hereinafter defined) is consummated during the Term of this Agreement
with any parties, whether introduced or contacted by the Company or
Spartan during the Term, the Company shall pay at the closing of or as
received on each such Transaction a cash fee equal to the sum of:
i. five percent (5%) of the first five million dollars of the
Aggregate Consideration (as herein after defined) of a
Transaction,
ii. four percent (4%) of the second five million dollars of the
Aggregate Consideration of a Transaction,
iii. three percent (3%) of the third five million dollars of the
Aggregate Consideration of a Transaction, and
iv. two percent (2%) of the Aggregate Consideration over fifteen
million dollars.
Aggregate Consideration is defined and computed as follows:
i. The total sale proceeds and other consideration received (which
shall be deemed to include amounts paid into escrow) by the
Company and/or its shareholders or by a target and/or its
shareholders upon the consummation of the Transaction (including
payments made in installments), inclusive of cash, securities,
notes, consulting agreements and agreements not to compete, plus
the total value of liabilities assumed.
ii. If the Aggregate Consideration for the Transaction consists in
whole or in part of securities, for the purposes of calculating
the amount of Aggregate Consideration, the value of such
securities will be the value thereof on the day preceding the
consummation of the Transaction as the Company and Spartan agree;
provided, however, that in the case of securities for which there
is a public trading market, the value will be determined by the
average last sales price for such securities for the last twenty
(20) days prior to such consummation as determined by Spartan and
communicated by Spartan to the Company. If there is no public
trading market for such securities but securities have been sold
in a private placement within the past 24 months, the fair market
value shall be based upon the gross sales price in the last such
private placement. For other property received or receivable as a
part of the Aggregate Consideration and the parties are unable to
agree, then each of Spartan and the Company will select an
investment banking firm respected in the merger and acquisition
field to determine a value and the midpoint between the two
values established by the two independent experts will be the
fair market value for the purpose hereof.
For the purposes of this Agreement, any of the following transactions
shall constitute a "Transaction":
i. the sale, outside of the ordinary course of business, of the
Company or any of its assets, securities, or business by means of
a merger, consolidation, joint venture, exchange offer or
purchase or sale of stock or assets, or any transaction resulting
in any change of control of the Company or its assets or
business; or
ii. the purchase by the Company, outside of the ordinary course of
business, of another company or any of its assets, securities or
business by means of a merger, consolidation, joint venture,
exchange offer or purchase or sale of stock or assets.
(d) THIRD-PARTY DEBT PLACEMENTS. In the event Spartan is involved in
originating a debt facility, inclusive of revolving credit facilities,
lines of credit, term loans, rediscounted credit facilities, senior
and junior loans, whether collateralized or unsecured, etc., (the
"Credit Facility") with a bank or other institutional lender (the
"Lending Source"), the Company will pay Spartan a fee of two percent
(2%) of the maximum amount of the Credit Facility. In the event
Spartan is involved in arranging an increase in a Credit Facility, the
Company will pay Spartan a fee of two percent (2%) of the increase
from the maximum amount of the existing Credit Facility to the maximum
amount of the new Credit Facility.
(e) EQUITY PLACEMENTS AND UNDERWRITINGS ("EQUITY FINANCING TRANSACTION").
The Company shall grant Spartan a right of first refusal (i) to act as
Placement Agent for any private offering of the Company's securities;
and (ii) to act as underwriter in any public offering of the Company's
securities, except where such private equity placements originate from
company officers and directors themselves. A fee with respect to any
sale or distribution of securities arising from this engagement will
be paid as follows:
i. Private Placement of Equity (or securities convertible into
equity)
Transaction Fee Ten percent (10%) of gross proceeds
raised in the placement or placements
Warrant Coverage Amount equal to twenty percent (20%)
of the offering. Warrants shall be
priced at 100% of the closing market
price the closing day of the
transaction.
Non-Accountable Expense Two percent (2%) of gross proceeds
Allowance
ii. Public Offering of equity
Transaction Fee Seven percent (7%) of gross proceeds
raised in the placement or placements
Warrant Coverage Amount equal to ten percent (10%) of
the offering. Warrants shall be
priced at 100% of the closing market
price the closing day of the
transaction.
Non-Accountable Expense Two percent (2%) of gross proceeds
Allowance
All Warrants shall expire three (3) years from the date of issuance
and shall have "piggy back" and demand registration rights and,
anti-dilution provisions on any forward splits or single material
increases of ten (10) percent or more of the common stock, acceptable
to Spartan. In lieu of paying the Shares Purchase Price in cash,
Spartan may, at its option, deliver to the Company for cancellation
shares of common stock or other outstanding securities of the Company
convertible into the Company's common stock (including rights
represented by this Warrant) that have a value equal to the Shares
Purchase Price. The determination of value shall be made by agreement
between the Holder and the Company, but, failing such agreement, by
reference to the trading price of the Company's common stock on the
date of exercise. The Shares Purchase Price may also be paid, at
Holder's option, by the Holder canceling any indebtedness of the
Company to the Holder.
(f) FAIRNESS OPINIONS, VALUATIONS AND OTHER SERVICES. Fees and expenses
payable to Spartan with regard to fairness opinions, valuations and
services not specifically set forth herein will be determined by
mutual agreement in writing at such time as the nature and terms of
such transactions are determined.
5. PAYMENT OF FEES. All fees to be paid pursuant to this Agreement are due and
payable to Spartan in cash and net of all applicable withholding and/or
similar taxes at the closing or closings of any transaction as specified in
Paragraph 3 hereof. The Company hereby irrevocably authorizes and instructs
third-party funding sources, including Lending Sources and private equity
groups, (the "Funding Sources"), to pay directly to Spartan cash sums
provided for in Paragraph 4 above and further authorizes Spartan to notify
the Funding Sources of this provision and the terms of this Agreement for
purposes of this provision and payment of the sums due under Paragraph 4 of
this Agreement. The Company agrees that Spartan is a direct beneficiary of
any eventual financing agreement between the Company and the Funding
Sources. The Company hereby expressly agrees that in the event any dispute
or disagreement arises with respect to the payment to Spartan of the sums
due under Paragraph 4 of this Agreement, including any dispute regarding
the amount due Spartan under this Agreement, that the Financing Sources
shall immediately place all disputed sums in an interest bearing Escrow
account pending resolution of the dispute. The Company hereby irrevocably
authorizes and instructs the Funding Sources to escrow such disputed sums.
The Company further agrees that any sums due under this Agreement which are
not in dispute shall not be escrowed, but shall be paid upon closing to
Spartan by the Funding Sources as provided for under the terms of this
Agreement.
6. CONTINUING OBLIGATION. In the event that this Agreement shall not be
renewed or if terminated for any reason notwithstanding any such renewal or
termination, Spartan shall be entitled to a full fee as provided under
Paragraph 4 hereof, for any transaction for which the discussions were
initiated during the Term of this Agreement and which is consummated within
a period of twelve (12) months after non-renewal or termination of this
Agreement.
7. EXPENSE REIMBURSEMENT. In addition to the compensation payable hereunder,
and regardless whether any transaction set forth in Paragraphs 3 or 4
hereof is proposed or consummated, the Company shall reimburse Spartan for
all fees and disbursements of Spartan's counsel and Spartan's travel and
out-of-pocket expenses incurred in connection with the services performed
by Spartan pursuant to this Agreement, including without limitation, hotel,
food and associated expenses, telephone calls and legal expenses. Said
expenses shall not exceed $50 in any 30-day period of the term unless
approved in writing by an officer or director of the Company.
8. DEFAULT BY THE COMPANY. In the event that the Company fails to pay the
retainer set forth in Paragraph 4 (c) hereof for any month by the end of
such month, Spartan may at any time prior to the payment in full of any
such monthly payment, demand payment of all or any portion of the past due
monthly retainers in Common Stock of the Company valued at one-half (1/2)
the fair market value thereof determined on the date such demand is made by
Spartan on the Company. Fair market value shall be determined as follows:
(i) if the Common Stock is quoted on the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"), the fair market value
shall be the closing inside bid price of the Common Stock as quoted on
NASDAQ; (ii) if the Common Stock is traded in the over the counter market,
but not quoted on NASDAQ, the fair market value shall be the average
closing bid price of the Common Stock; (iii) if the Common Stock is
publicly traded in any market other than NASDAQ, the fair market value
shall be the closing bid price of the Common Stock; (iv) if the Common
Stock is not publicly traded, but the Company has concluded a private
placement of shares of Common Stock within the past 24 months, the fair
market value shall be based upon the gross sales price of shares of Common
Stock in the last such private placement. In the event that Spartan makes
such a demand for payment in Common Stock, then the Company shall either
make all past due payments to Spartan within five (5) days of receipt of
such notice or promptly shall deliver restricted shares of its Common Stock
to Spartan in payment of such retainer obligations. Spartan agrees that any
Common Stock so received will be purchased for investment purposes only and
not with a view to distribution.
9. NON-PERFORMANCE BY SPARTAN. If Spartan fails to raise at least $250,000 net
for AdZone within 125 days, this contract may be cancelled by AdZone with
no further payments or compensation due Spartan.
10. CONFIDENTIALITY. The Company acknowledges that all opinions and advice
(written or oral) given by Spartan to the Company in connection with
Spartan's engagement are intended solely for the benefit and use of the
Company in considering the transaction to which they relate, and the
Company agrees that no person or entity other than the Company shall be
entitled to make use of or rely upon the advice of Spartan to be given
hereunder, and no such opinion or advice shall be used for any other
purpose or reproduced, disseminated, quoted or referred to at any time, in
any manner or for any purpose, nor may the Company make any public
references to Spartan, or use Spartan's name in any annual reports or any
other reports or releases of the Company without Spartan's prior written
consent.
11. INDEPENDENT CONTRACTOR. The Company acknowledges that Spartan is in the
business of providing financial services and consulting advice to others.
Nothing herein contained shall be construed to limit or restrict Spartan in
conducting such business with respect to others, or in rendering such
advice to others. Spartan shall perform its services hereunder as an
independent contractor and not as an employee of the Company or an
affiliate thereof. It is expressly understood and agreed to by the parties
hereto that Spartan shall have no authority to act for, represent or bind
the Company or any affiliate thereof in any manner, except as may be agreed
to expressly by the Company in writing from time to time.
12. RELIANCE. The Company recognizes and confirms that, in advising the Company
and in fulfilling its engagement hereunder, Spartan will use and rely on
data, material and other information furnished to Spartan by the Company.
The Company acknowledges and agrees that in performing its services under
this engagement, Spartan may rely upon the data, material and other
information supplied by the Company without independently verifying the
accuracy, completeness or veracity of same.
13. NOTICES. Any notice or communication permitted or required hereunder shall
be in writing and shall be deemed sufficiently given if hand-delivered or
sent (i) postage prepaid by registered mail, return receipt requested, or
(ii) by facsimile, to the respective parties as set forth below, or to such
other address as either party may notify the other of in writing:
If to the Company, to: Adzone Research, Inc.
0000-00 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
If to Spartan, to: Spartan Securities Group, Ltd.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Title: Senior Managing Partner
14. INDEMNIFICATION. Spartan and the Company have entered into a separate
letter agreement dated the date hereof (the "Indemnity Letter"), providing
for the indemnification of Spartan by the Company in connection with
Spartan's engagement hereunder.
15. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which together shall constitute one and the same original document.
16. ASSIGNABILITY AND MODIFICATION. This Agreement is not assignable and cannot
be modified or changed, nor can any of its provisions be waived, except by
the mutual agreement in writing of all parties.
CHOICE OF XXXXXX VENUE
This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the state of the
defendant including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of
laws. Any legal action brought by the Company against the Consultant shall
be brought in the State of Florida, County of Hillsbourgh and any action
brought by the Consultant against the Company shall be in the State of New
York, County of Suffolk.
17. SEVERABILITY. Each paragraph, term or provision of this Agreement shall be
considered severable and if, for any reason, any paragraph, term or
provision is determined to be invalid or contrary to any existing or future
law or regulation, such will not impair the operation, or effect the
remaining portions, of this Agreement.
18. DISPUTE RESOLUTION. The parties shall attempt amicably to resolve
disagreements by negotiating with each other. In the event that the matter
is not amicably resolved through negotiation, any controversy, dispute or
disagreement arising out of or relating to this Agreement (a "Controversy")
shall be submitted to a nationally recognized arbitration association, such
as J.A.M.S./Endispute or the American Arbitration Association, for final
binding arbitration, which shall be conducted by a single arbitrator (the
"Arbitrator") in Tampa, Florida, pursuant to J.A.M.S./Endispute's
Arbitration Rules (the "Rules"). Notwithstanding anything to the contrary
contained in the Rules, the Arbitrator shall not award consequential,
exemplary, incidental, punitive or special damages.
If any party shall desire relief of any nature whatsoever from any other
party as a result of any Controversy, such party will initiate such
arbitration proceedings within a reasonable time, but in no event more than
one (1) year after the facts underlying said Controversy first arise or
become known to the party seeking relief (whichever is later). The failure
of such party to institute such proceedings within said period shall be
deemed a full waiver of any claim for such relief. Arbitrator may award the
prevailing party its costs for the arbitration proceeding; including its
reasonable attorneys' fees and costs. The parties agree that the decision
and award of the Arbitrator shall be taken, but that such award or decision
may be entered as a judgement and enforced in any court having jurisdiction
over the party against whom enforcement is sought. Any equitable relief
awarded under this paragraph shall be dissolved upon issuance of the
Arbitrator's decision and order.
Notwithstanding the provisions for dispute resolution, in the event of a
breach or threatened breach by any party to this Agreement, either party
shall be entitled in order to maintain the status quo and pending the
outcome of any arbitration pursuant to this Agreement, seek an injunction
or similar equitable relief restraining either party, as the case may be,
from committing or continuing any such breach or threatened breach or
granting specific performance of any act required to be performed without
the necessity of showing that money damages would not afford an adequate
remedy and without the necessity of posting any bond or other security. The
parties hereto hereby consent to the jurisdiction listed above for any
proceedings under this paragraph. The parties agree that the availability
of arbitration in the Agreement shall not be used by any party as grounds
for the dismissal of an injunctive action instituted by the other party.
Very truly yours,
SPARTAN SECURITIES GROUP, LTD.
By:
Name: Xxxxx Xxxxxx
Title: Senior Managing Partner
Accepted and Agreed to as of the date first written above:
ADZONE RESEARCH, INC.
By:
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
TO: Spartan Securities Group, Ltd. February 14, 2003
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
In connection with your engagement pursuant to our letter agreement of even
date herewith (the "Engagement"), we agree to indemnify and hold harmless
Spartan Securities Group, Ltd. ("Spartan" or "you") and its affiliates, the
respective directors, officers, partners, agents and employees of Spartan and
its affiliates, and each other person, if any, controlling Spartan or any of its
affiliates (collectively, "Indemnified Persons"), from and against, and we agree
that no Indemnified Person shall have any liability to us or our owners,
parents, affiliates, security holders or creditors for, any losses, claims,
damages or liabilities (including actions or proceedings in respect thereof)
(collectively "Losses") (a) related to or arising out of (i) our actions or
failures to act (including statements or omissions made, or information
provided, by us or our agents) or (ii) actions or failures to act by an
Indemnified Person with our consent or in reliance on our actions or failures to
act, or (b) otherwise related to or arising out of the Engagement or your
performance thereof, except that this clause (b) shall not apply to any Losses
that are finally judicially determined to have resulted primarily from your bad
faith or gross negligence. If such indemnification is for any reason not
available or insufficient to hold you harmless, we agree to contribute to the
Losses involved in such proportion as is appropriate to reflect the relative
benefits received (or anticipated to be received) by us and by you with respect
to the Engagement or, if such allocation is judicially determined unavailable,
in such proportion as is appropriate to reflect other equitable considerations
such as the relative fault of us on the one hand and of you on the other hand;
provided, however, that, to the extent permitted by applicable law, the
Indemnified Persons shall not be responsible for amounts which in the aggregate
are in excess of the amount of all fees actually received by you from us in
connection with the Engagement. Relative benefits to us, on the one hand, and
you, on the other hand, with respect to the Engagement shall be deemed to be in
the same proportion as (i) the total value paid or proposed to be paid or
received or proposed to be received by us or our security holders, as the case
may be, pursuant to the transaction(s), whether or not consummated, contemplated
by the Engagement bears to (ii) all fees paid or proposed to be paid to you by
us in connection with the Engagement.
We will reimburse each Indemnified Person for all expenses (including
reasonable fees and disbursements of counsel) as they are incurred by such
Indemnified Person in connection with investigating, preparing for or defending
any action, claim, investigation, inquiry, arbitration or other proceeding
("Action") referred to above (or enforcing this agreement or any related
engagement agreement), whether or not in connection with pending or threatened
litigation in which any Indemnified Person is a party, and whether or not such
Action is initiated or brought by you . We further agree that we will not settle
or compromise or consent to the entry of any judgment in any pending or
threatened Action in respect of which indemnification may be sought hereunder
(whether or not an Indemnified Person is a party therein) unless we have given
you reasonable prior written notice thereof and used all reasonable efforts,
after consultation with you, to obtain an unconditional release of each
Indemnified Person from all liability arising therefrom. In the event we are
considering entering into one or a series of transactions involving a merger or
other business combination or a dissolution or liquidation of all or a
significant portion of our assets, we shall promptly notify you in writing. If
requested by Spartan, we shall then establish alternative means of providing for
our obligations set forth herein on terms and conditions reasonably satisfactory
to Spartan.
If multiple claims are brought against you in any Action with respect to at
least one of which indemnification is permitted under applicable law and
provided for under this agreement, we agree that any judgment, arbitration award
or other monetary award shall be conclusively deemed to be based on claims as to
which indemnification is permitted and provided for. Our obligations hereunder
shall be in addition to any rights that any Indemnified Person may have at
common law or otherwise. Solely for the purpose of enforcing this agreement, we
hereby consent to personal jurisdiction and to service and venue in any court in
which any claim which is subject to this agreement is brought by or against any
Indemnified Person. We acknowledge that in connection with the Engagement you
are acting as an independent contractor with duties owing solely to us. YOU
HEREBY AGREE, AND WE HEREBY AGREE ON OUR OWN BEHALF AND, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ON BEHALF OF OUR SECURITY HOLDERS, TO WAIVE ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTER-CLAIM OR ACTION ARISING OUT OF
THE ENGAGEMENT, YOUR PERFORMANCE THEREOF OR THIS AGREEMENT.
The provisions of this agreement shall apply to the Engagement (including
related activities prior to the date hereof) and any modification thereof and
shall remain in full force and effect regardless of the completion or
termination of the Engagement. This agreement and any other agreements relating
to the Engagement shall be under seal, governed by and construed in accordance
with the laws of State of Florida, without regard to conflicts of law principles
thereof.
Very truly yours,
Accepted and Agreed:
Spartan Securities Group, Ltd. Client: Adzone Research, Inc.
By: By:
---------------------------- ----------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxxxxx
Title: Senior Managing Partner Title: Chief Executive Officer
