AGREEMENT
This Agreement ("Agreement") is made and entered into as of the 31st
day of December, 2000 between Triple Crown Consulting LTD (the "Consultant"),
with an office at 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000 and
Vizacom Inc., a Delaware corporation (the "Company"), with its principal
executive offices at 000 Xxxxx X. Xxxx Xxxx., 0xx xxxxx, Xxxxxxx, Xxx Xxxxxx
00000.
WITNESSETH:
WHEREAS, the Consultant is engaged in the business of providing
financial advisory advice, introductions as a finder to investors and investment
banking firms, and assisting in setting up road shows, conference calls and
other presentations to potential investors and investment banking industry
participants; and
WHEREAS, the Company is desirous of retaining the Consultant for the
purpose of obtaining financial advisory advice, introductions to investors and
investment banking firms, and assistance in setting up road shows, conference
calls and other presentations to potential investors and investment banking
industry participants.
NOW THEREFORE:
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. Term. This Agreement shall commence on December 31, 2000 and
continue for a term of two (2) years; provided, that the Company shall have the
right to terminate this Agreement upon notice to Consultant at any time.
2. Services. (a) The Company hereby engages Consultant for the term
specified in Paragraph 1 hereof to render such services and advice to the
Company as the Company may request. Consultant's duties may include, but will
not necessarily be limited to, providing financial advisory advice;
introductions to investors, investment banking firms and potential acquisition
targets; and assistance in setting up road shows, conference calls and other
presentations to potential investors and investment banking industry
participants. Company acknowledges the Consultant's ability to relate
information regarding Client's activities is directly related to the activities
of the Company and the information provided by Company to Consultant.
Consultant's duties may include, but will not necessarily be limited to,
providing recommendations concerning the following financial and related
matters:
(1) 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;
(iv) corporate organization and personnel; and
(2) Rendering advice with regard to any of the following corporate
finance and other 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) alternative uses of corporate assets;
(vi) structure and use of debt; and
(viii) the acquisition of and/or merger with other companies,
the sale of the Company itself, or any of its assets,
subsidiaries or affiliates, or similar type of
transaction.
(b) Consultant will have no obligation whatsoever to provide to or for
the benefit of the Company any securities analysts' reports or any market making
activities.
3. Compensation.
Upon execution and delivery of this Agreement, the Company will (a)
issue to Consultant (or its designees) 200,000 shares (the "Shares") of common
stock, par value $.001 per share, of the Company (the "Common Stock"); provided
that 175,000 of such shares of Common Stock will be deposited into escrow with
Xxxxxxx & Xxxxxxxx, LLC, as escrow agent (the "Escrow Agent") pursuant to the
terms of an escrow agreement of even date herewith among the Company, the
Consultant and the Escrow Agent. In connection therewith, at the end of each
calendar quarter after the date hereof, the Company will cause the Escrow Agent
to release from escrow to Consultant (or its designees) 25,000 shares of Common
Stock, so long as this Agreement remains in effect.
Consultant shall also be entitled to (i) a finder's fee equal to three
percent (3%) of the gross proceeds received by the Company in connection with
capital raised by the Company through sources introduced to the Company by
Consultant, and (ii) a finder's fee equal to 5% of the gross consideration paid
or received by the Company in connection with merger and acquisition
transactions consummated with parties introduced to the Company by Consultant,
payable in cash or in stock in the same manner provided for in the merger and
acquisition transaction to which such fee relates; provided, in each case, that
in no event shall the Company be obligated to pay finder's or placement agent's
fees of more than 13% in the aggregate in connection with any financing
transaction or 10% in the aggregate in connection with any acquisition
transaction.
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4. Expenses. In addition to the fees payable hereunder, the Company
shall reimburse Consultant for all reasonable travel and out-of-pocket expenses
incurred in connection with the services performed by Consultant pursuant to
this Agreement, promptly after submission to the Company of appropriate evidence
of such expenditures. All such expenditures in excess of $200 will be submitted
to the Company for approval in advance.
5. Representations and Warranties. Consultant hereby represents,
warrants and acknowledges to and covenants and agrees with the Company as
follows:
(a) Investment Intent. Consultant is acquiring the Shares for the
its own account, for investment only and not with a view to, or for sale in
connection with, a distribution thereof or any part thereof, within the meaning
of the Securities Act, and the rules and regulations promulgated thereunder, or
any applicable state securities or blue-sky laws;
(b) Investor Status. Consultant is an accredited investor as such
term is defined under Rule 501 of Regulation D promulgated pursuant to the
Securities Act ("Regulation D");
(c) Intent to Transfer. Consultant is not a party to or subject
to or bound by any contract, undertaking, agreement or arrangement with any
person to sell, transfer or pledge the Shares or any part thereof to any person,
and has no present intention to enter into such a contract, undertaking,
agreement or arrangement;
(d) Offering Exempt from Registration; Company's Reliance.
(i) The Company has advised Consultant that the Shares have
not been registered under the Securities Act or under the laws of
any state on the basis that the issuance thereof is exempt
from such registration;
(ii) The Company's reliance on the availability of
such exemption is, in part, based upon the accuracy and
truthfulness of Consultant's representations contained herein;
(iii) As a result of such lack of registration, none
of the Shares may be resold or otherwise transferred or disposed
of without registration pursuant to or an exemption therefrom
available under the Securities Act and such state securities laws;
and
(iv) In furtherance of the provisions of this paragraph (d), all
of the certificate(s) representing the Shares shall bear a
restrictive legend substantially in the following form:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THESE SHARES HAVE
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BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR
AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SHARES TO
THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT AND SUCH
STATE SECURITIES LAWS;"
AND the stock certificates subject to escrow shall also bear the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS OF AN ESCROW AGREEMENT DATED AS OF DECEMBER 31, 2000
AMONG THE COMPANY, TRIPLE CROWN CONSULTING AND XXXXXXX & XXXXXXXX,
LLC, AS ESCROW AGENT."
(e) Sophistication of Consultant. Consultant has evaluated the
merits and risks of acquiring the Shares and has such knowledge and experience
in financial and business matters that the undersigned is capable of evaluating
the merits and risks of such acquisition, is aware of and has considered the
financial risks and financial hazards of acquiring the Shares, and is able to
bear the economic risk of acquiring the Shares, including the possibility of a
complete loss with respect thereto;
(f) Access to Information. Consultant has had access to such
information regarding the business and finances of the Company, the receipt and
careful reading of which is hereby acknowledged by Consultant, and has been
provided the opportunity to discuss with the Company's management the business,
affairs and financial condition of the Company and such other matters with
respect to the Company as would concern a reasonable person considering the
transactions contemplated by this Agreement and/or concerned with the operations
of the Company including, without limitation, pursuant to a meeting and/or
discussions with management of the Company;
(g) No Guarantees. It never has been represented, guaranteed or
warranted to Consultant by the Company, or any of its officers, directors,
agents, representatives or employees, or any other person, expressly or by
implication, that:
(i) Any gain will be realized by the undersigned from
Consultant's investment in the Shares;
(ii) There will be any approximate or exact length of time
that Consultant will be required to remain as a holder of
Shares; or
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(iii) The past performance or experience on the part of the
Company, its predecessors or of any other person, will in any way
indicate any future results of the Company;
(h) No Other Representations, Warranties, Covenants or Agreements
of the Company. Except as set forth in this Agreement, the Company has not made
any representation, warranty, covenant or agreement with respect to the matters
contained herein, and Consultant has not and will not rely on any
representation, warranty, covenant or agreement except as set forth in this
Agreement;
(i) High Degree of Investment Risk. The investment in the Shares
involves a high degree of risk and may result in a loss of the entire amount
invested; there is no assurance that the Company's operations will be profitable
in the future; and there is no assurance that a public market for shares of
Common Stock will continue to exist;
(j) State of Principal Place of Business. The address set forth
at the bottom hereof is Consultant's true and correct principal place of
business, and Consultant has no present intention of relocating its principal
place of business to any other country, state or jurisdiction;
(k) No Purchaser Representative. Consultant has not authorized
any person or institution to act as the undersigned's "purchaser
representative" (as such term is defined in Rule 501 of Regulation D) in
connection with Consultant's investment in Shares; and
(l) No General Solicitation. Consultant has not received any
general solicitation or general advertising regarding the purchase of any
of the Shares.
6. Company Information. The Company acknowledges that all opinions and
advice (written or oral) given by Consultant to the Company in connection with
Consultant's engagement are intended solely for the benefit and use of the
Company (including its officers and directors) in considering the transaction to
which they relate, and the Company agrees that no person or entity other than
the Company (including its officers and directors) shall be entitled to make use
of or rely upon the advice of Consultant to be given hereunder, and no such
opinion or advice shall be used for any manner or for any purpose, nor may the
Company make any public references to Consultant, or use the Consultant's name
in any annual reports or any other reports or releases of the Company, without
Consultant's prior written consent. The Company recognizes and confirms that, in
advising the Company hereunder, Consultant will use and rely on data, material
and other information furnished to Consultant by the Company, without
independently verifying the accuracy, completeness or veracity of same.
7. Confidentiality. Consultant will, and will direct its directors,
officers, employees, representatives, agents and advisors ("Representatives")
to, hold in confidence and not use or disclose any confidential information of
the Company. Notwithstanding the foregoing, Consultant shall not be required to
maintain confidentiality with respect to information (i) which is or becomes
part of the public domain not due to the breach of this Agreement by Consultant,
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(ii) of which it had independent knowledge prior to disclosure; (iii) which
comes into the possession of Consultant in the normal and routine course of its
own business from and through independent non-confidential sources; or (iv)
which is required to be disclosed by Consultant by laws, rules or regulators. If
Consultant is requested or required to disclose any confidential information
supplied to it by the Company, Consultant shall, unless prohibited by law,
promptly notify the Company of such request(s) so that the Company may seek an
appropriate protective order. In addition, Consultant acknowledges that it is
aware, and that it will advise its Representatives who receive confidential
information, that the United States securities laws prohibit any person who has
material, non-public information from purchasing or selling securities of the
Company (and options, warrants and rights relating thereto) and from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person (including, without limitation,
any of your Representatives) is likely to purchase or sell such securities.
8. Other Consulting Clients. The Company acknowledges that Consultant
or its affiliates are in the business of providing services and consulting
advice to others. Nothing herein contained shall be construed to limit or
restrict Consultant in conducting such business with others, or in rendering
such advice to others, provided that Consultant shall not take any action, to
the best of its knowledge and belief, that would be contrary to the interests of
the Company.
9. Indemnification. (a) The Company agrees to indemnify and hold
harmless Consultant, its employees, directors, officers, agents, representatives
and controlling persons from and against any and all losses, claims, damages,
liabilities, suits, actions, proceedings, costs and expenses (collectively,
"Damages"), including, without limitation, reasonable attorney fees and
expenses, as and when incurred, if such Damages were directly caused by,
relating to, based upon or arising out of the rendering by Consultant of
services pursuant to this Agreement, so long as Consultant shall not have
engaged in illegal, intentional or willful misconduct, or shall have acted
grossly negligently, in connection with the services provided which form the
basis of the claim for indemnification. This paragraph shall survive the
termination of this Agreement.
(b) The Consultant agrees to indemnify and hold harmless the Company,
its employees, directors, officers, agents, representatives and controlling
persons from and against any and all Damages, including, without limitation,
reasonable attorney fees and expenses, as and when incurred, if such Damages
were directly caused by, relating to, based upon or arising out of the rendering
by Consultant of services pursuant to this Agreement, if Consultant shall have
engaged in illegal, intentional or willful misconduct, or shall have acted
grossly negligently, in connection with the services provided which form the
basis of the claim for indemnification. This paragraph shall survive the
termination of this Agreement.
10. Independent Contractor. Consultant shall perform its services
hereunder as an independent contractor and not as an employee or agent of the
Company or any affiliate thereof. Consultant shall have no authority to act for,
represent or bind the Company or any affiliate thereof in any manner, except as
may be expressly agreed to by the Company in writing
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from time to time.
11. Arbitration. In the event of any dispute under this Agreement,
then and in such event, each party agrees that the same shall be submitted to
the American Arbitration association ("AAA") in the City of New York or nearest
city, for its decision and determination in accordance with its rules and
regulations then in effect. Each of the parties agrees that the decision and/or
award made by the AAA may be entered as judgment of the Courts of the State of
New York, and shall be enforceable as such.
12. Notices. Any notice to be given by either party to the other
hereunder shall be sufficient if in writing and sent by (a) nationally
recognized overnight courier, (b) facsimile transmission electronically
confirmed, (c) hand delivery against receipt, (d) registered or certified mail,
return receipt requested, in each case addressed to such party at the address
specified on the first page of this Agreement or such other address as either
party may have given to the other in writing.
13. Miscellaneous. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. No provision of
this Agreement may be amended, modified or waived, except in writing signed by
both parties. This Agreement shall be binding upon and inure to the benefit of
each of the parties and their respective successors, legal representatives and
assigns. This Agreement shall not be assigned by either party without the
written consent of the other party. This Agreement may be executed in
counterparts. This Agreement shall be construed and enforced in accordance with
the laws of the State of New York, without giving effect to conflict of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on the day of the year first above written.
VIZACOM INC.
By: /s/ Xxxx Xxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxx
Title: CFO
TRIPLE CROWN CONSULTING LTD
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: President
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