EXHIBIT 10.(b)
X.X. XXXXXXXX & CO., INC.
FOUNDED 1960
BROKERS & DEALERS IN SECURITIES
UNDERWRITERS
NEWPORT TOWER OFFICE
000 XXXXXXXXXX XXXX.
X.X. XXX 000
XXXXXX XXXX, XX 00000-0000
201-459=0000 000-000-0000 FAX 000-000-0000
xxx.xxxxxxxxxx.xxx
April 7, 1997
Xx. Xxxxxx X. Xxxxxx,
President ATS Money Systems,Inc.
00 Xxxxxxxx Xxxxx Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxx:
THIS AGREEMENT (the "AGREEMENT") is made as of April
7, 1997 between ATS Money Systems, Inc. ("ATSM") and X.X.
Xxxxxxxx & Co., Inc. ("XXXXXXXX").
In consideration of the mutual covenants contained
herein and intending to be legally bound thereby, ATSM and
XXXXXXXX hereby agree as follows:
1. XXXXXXXX will perform investment banking services
for ATSM on the terms set forth below for a period of four
years from the date hereof. Such services will be performed on
a best efforts basis and will include, without limitation,
assistance to ATSM in mergers, acquisitions, and internal
capital structuring and the placement of new debt and equity
issues of ATSM, all with the objective of accomplishing ATSM's
business and financial goals. In each instance, XXXXXXXX shall
endeavor, subject to market conditions, to assist ATSM in
identifying corporate candidates for mergers and acquisitions
and sources of private and institutional funds; to provide
planning, structuring, strategic and other advisory services to
ATSM; and to assist in negotiations on behalf of ATSM. In each
instance, XXXXXXXX will render such services as to which ATSM
and XXXXXXXX mutually agree and XXXXXXXX will exert its best
efforts to accomplish the goals agreed to by XXXXXXXX and ATSM.
2. In connection with the performance of this
AGREEMENT, XXXXXXXX and ATSM shall comply with all applicable
laws and regulations, including, without limitation, those of
the National Association of Securities Dealers, Inc. and the
Securities and Exchange Commission.
3. In consideration of the services to be rendered
by XXXXXXXX hereunder, XXXXXXXX is granted Warrants to purchase
common shares of ATSM in the following manner:
1) Warrants to purchase 80,000 common shares of
ATSM at $0.75 per share issuable as of the day of signing of
this AGREEMENT.
2) Warrants to purchase 80,000 common shares of ATSM
at $1.25, issuable one year and one day from the signing of
this AGREEMENT.
3) Warrants to purchase 80,000 common shares of ATSM
at $1.25 two years and one day from the signing of this
AGREEMENT.
All Warrants are irrevocable upon issuance. All
Warrants will expire at the end of the fourth year of the
signing of this AGREEMENT.
4. If ATSM should, at any time, or from time to time
hereinafter, effect a stock split, a reverse stock split, or a
recapitalization, the terms of the XXXXXXXX Warrants shall be
proportionately adjusted to prevent the dilution or enlargement
of the rights of the holders.
5. During the four (4) year period from the date of
signing of this AGREEMENT, the holders of a least 51% of: (i)
the XXXXXXXX Warrants not then exercised; and (ii) the shares
previously issued upon exercise of any of the XXXXXXXX Warrants
(hereinafter, collectively, the "XXXXXXXX EQUITY"), may demand,
on one occasion only, that ATSM, at XXXXXXXX'x expense,
promptly file a Registration Statement under the Securities Act
of 1933, as amended ("ACT"), to permit a public offering of the
shares of Common Stock issued and issuable pursuant to exercise
of the XXXXXXXX Warrants (the "XXXXXXXX SHARES").
Additionally, if ATSM during such four (4) year period, files a
Registration Statement covering the sale of any of ATSM's common
stock, other than a Registration Statement on Form S-8, then
ATSM, on each such occasion, at the request of the holders of
at least 51% of the shares and warrants constituting the
XXXXXXXX EQUITY, shall include in any such Registration
Statement, at ATSM's expense, and if such inclusion is
permitted under the rules of the SEC the XXXXXXXX SHARES,
provided that, if the sale of securities by ATSM is being made
through an underwriter and the underwriter objects to inclusion
of the XXXXXXXX shares in the Registration Statement, the
XXXXXXXX SHARES shall not be so included in the Registration
Statement or in any registration statement filed within 90 days
after the effective date of the underwritten Registration
Statement.
6. The obligation of ATSM to register the XXXXXXXX
SHARES, including the shares issuable upon exercise of the
XXXXXXXX Warrants, pursuant to the demand or the piggy back
registration rights set forth in paragraph 5, above, shall be
without regard to whether the XXXXXXXX Warrants have been or
will be exercised.
7. The Warrants are not being registered under the
ACT and may not be transferred, nor may the shares issuable
upon exercise be transferred, in the absence of being registered
under the ACT and applicable state securities laws, unless ATSM
receives an opinion of XXXXXXXX'x counsel (which counsel and
opinion are reasonably satisfactory to counsel to ATSM) that
such transfer is exempt from the ACT and applicable state
securities law.
8. This AGREEMENT constitutes the entire Warrant
Agreement between the parties and when a copy hereof is
presented to ATSM's transfer agent, together with a certified
check in the proper amount and a request that all or part of
the XXXXXXXX Warrant be exercised, the certificates for the
appropriate number of shares of Common Stock shall be promptly
issued.
9. ATSM shall make such disclosure with respect to
this investment banking AGREEMENT as is required under the ACT
and other federal securities laws.
10. Upon the signing of this AGREEMENT, ATSM shall
pay XXXXXXXX $5,000.00 as a non-accountable and non-refundable
expense allowance for due diligence and general compliance
review. XXXXXXXX shall be entitled to additional compensation,
to be negotiated between XXXXXXXX and ATSM, arising out of any
transactions that are proposed or executed by XXXXXXXX and
consummated by ATSM, or are executed by XXXXXXXX at ATSM's
request, during the term of this AGREEMENT to the extent that
such compensation is approved in writing in advance by ATSM's
Chief Executive Officer. In addition, XXXXXXXX shall be
reimbursed by ATSM for any reasonable out-of-pocket expenses
that XXXXXXXX may incur in connection with rendering any service
to or on behalf of ATSM which expenses are approved, in
writing, in advance by ATSM's Chief Executive Officer.
11. ATSM agrees to indemnify and hold XXXXXXXX and
its directors, officers and employees harmless from and against
any and all losses, claims, damages, liabilities, costs or
expenses arising out of any action or cause of action brought
against XXXXXXXX in connection with its rendering services
under this AGREEMENT except for any losses, claims, damages,
liabilities, costs or expenses resulting from any violation by
XXXXXXXX of applicable laws and regulations including, without
limitation, those of the National Association of Securities
Dealers, Inc. and the Securities and Exchange Commission or any
state securities commission or from any act of XXXXXXXX
involving negligence or misconduct and except that ATSM shall
not be liable for any amount paid in settlement of any claim
that is settled without its prior written consent.
12. XXXXXXXX agrees to indemnify and hold ATSM and
its directors, officers and employees harmless from and against
any and all losses, claims, damages, liabilities, costs or
expenses resulting from any violation by XXXXXXXX of applicable
laws and regulations including without limitation, those of the
National Association of Securities Dealers, Inc., the
Securities and Exchange Commission any state securities
commission or from any act of XXXXXXXX involving negligence or
misconduct.
13. Within 90 days of the date of this AGREEMENT, a
representative of XXXXXXXX will visit the corporate
headquarters of ATSM. ATSM will submit to XXXXXXXX a current
business plan setting forth how ATSM plans to proceed over the
next two (2) years.
14. Nothing contained in this AGREEMENT shall be
construed to constitute XXXXXXXX as a partner, employee, or
agent of ATSM; nor shall either party have any authority to bind
the other in any respect, it being intended that XXXXXXXX is,
and shall remain an independent contractor.
15. This AGREEMENT may not be assigned by either
party hereto, shall be interpreted in accordance with the laws
of the State of New Jersey, and shall be binding upon the
successors of the parties. Either party may terminate this
investment banking contract at any time; however, issued
Warrants will remain with XXXXXXXX.
16. If any paragraph, sentence, clause or phrase of
this AGREEMENT is for any reason declared to be illegal,
invalid, unconstitutional, void or unenforceable, all other
paragraphs, sentences, clauses or phrases hereof not so held
shall be and remain in full force and effect.
17. None of the terms of this AGREEMENT shall be
deemed to be waived or modified except by an express agreement
in writing signed by the party against whom enforcement of such
waiver or modification is sought. The failure of either party
at any time to require performance by the other party of any
provision hereof shall, in no way, affect the full right to
require such performance at any time thereafter. Nor shall the
wavier by either party of a breach of any provision hereof be
taken or held to be a waiver of any succeeding breach of such
provision or as a waiver of the provision itself.
18. Any dispute, claim or controversy arising out of
or relating to this AGREEMENT, or the breach thereof, shall be
settled by arbitration in Jersey City, New Jersey, in accordance
with the Commercial Arbitration Rules of the American
Arbitration Association. The parties hereto agree that they
will abide by and perform any award rendered by the
arbitrator(s) and that judgement upon any such award may be
entered in any Court, state or federal, having jurisdiction
over the party against whom the judgment is being entered. Any
arbitration demand, summons, complaint, other process, notice
of motion, or other application to an arbitration panel, Court
or Judge, and any arbitration award or judgement may be served
upon any party hereto by registered or certified mail, or by
personal service, provided a reasonable time for appearance or
answer is allowed.
19. For purpose of compliance with laws pertaining
to potential inside information being distributed unauthorized
to anyone, all communications regarding ATSM's confidential
information should only be directed to Xxxxxx X. Xxxxxxxx,
Chairman, Xxxxxxx Xxxxxxxxx, President, or Xxxxx Xxxxxxxxxxx,
Senior Vice President, Compliance. If information is being
faxed, our confidential compliance fax number is (000) 000-0000
for communication use.
20. ATSM shall have the right to cancel this
AGREEMENT at any time. Unless ATSM exercises their
cancellation rights, this Agreement will remain in effect for
the full four years. If ATSM exercises their right on the
first anniversary of this AGREEMENT, ATSM agrees that XXXXXXXX
will be entitled to a minimum of Warrants for 160,000 shares as
described in parts one and two of paragraph three.
IN WITNESS WHEREOF, the parties hereto have executed
this AGREEMENT as of the day and year set forth above.
X.X. Xxxxxxxx & Co., Inc. ATS Money Systems, Inc.
XXXXXXX XXXXXXXXX XXXXXX X.XXXXXX
Xxxxxxx Xxxxxxxxx Xxxxxx X. Xxxxxx
President President
