Exhibit 10.34
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AGREEMENT
AGREEMENT, dated as of August 19, 1997, between XXXXX
X. XXXXXXXXX ("Consultant"), and TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC. ("TASA"), a Delaware corporation.
W I T N E S S E T H :
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WHEREAS, TASA agrees to retain Consultant to act as its
investment banker and financial consultant in connection with
TASA's business affairs and Consultant is willing to undertake to
provide such services as hereinafter fully set forth.
NOW, THEREFORE, in consideration of the premises
contained herein, the parties agree as follows:
1. Term.
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The term of this Agreement shall be for one (1) year
from the date first written above, which term shall be renewed
automatically for additional one-year terms, unless written
notice to terminate service is received by one party from the
other not less than 30 days before the then expiration of then
applicable term. This Agreement may be canceled at any time for
any reason whatsoever, by either party, by the giving of at least
30 days' prior written notice.
2. Nature of Services.
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Consultant will render assistance and advice to TASA on
matters relating to the growth and financing goals of TASA and in
connection therewith, Consultant shall:
(a) seek to find strategic partners and/or financing
entities to assist TASA in its projects;
(b) attend meetings of TASA's Board of Directors and
other such meetings when so requested by TASA;
(c) make itself available for financial public
relations and marketing consulting;
(d) arrange introductions to various broker/dealers
who may be interested in knowing more about TASA,
including its goals and aspirations;
(e) attend with TASA whenever possible, all meetings
with proposed major investors or lenders; and
(f) an understanding that Consultant's work will not
include any services that constitute the rendering
of any legal opinions or performance of work that
is in the ordinary purview of a certified public
accountant.
Consultant shall devote such of its time and efforts as it, in
its sole discretion, determines is necessary to discharge its
duties hereunder.
3. Responsibilities of TASA.
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TASA shall provide Consultant with appropriate
financial and business information about TASA as requested by
Consultant. In addition, executive officers and directors of
TASA shall make themselves available for personal consultations
with Consultant and certain third parties, subject to reasonable
prior notice, pursuant to the request of Consultant.
4. Compensation.
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For the services rendered by the Consultant to TASA
hereunder, TASA shall compensate the Consultant as follows:
(a) TASA shall issue, within 60 days, a total of
50,000 shares (the "Shares") of its Common Stock,
par value $0.001 per share (the "Common Stock"),
which will be registered by TASA pursuant to the
Federal securities laws within six months from the
date hereof. The Shares, until so registered,
shall be restricted shares and shall bear a legend
in substantially the following form:
"The Shares evidenced by this Certificate
have not been registered under the Securities Act
of 1933, as amended, or applicable state
securities laws, and may not be sold, transferred
or encumbered except pursuant to an effective
registration statement under the Securities Act of
1933, as amended, and such state securities laws,
or unless an exemption from such registration is
then available."
(b) TASA shall issue one or more Warrants to
Consultant providing for the purchase of up to One
Hundred Twenty-five Thousand (125,000) shares of
TASA's common stock at a purchase price per share
equal to the closing bid price of TASA's common
stock on the date of this Agreement. Such
Warrants shall be exercisable for a period of five
(5) years from the date first written above (the
"Warrants").
(c) The Warrants may be exercised from time to time,
in whole or in part, by the Warrant holder by
giving written notice to TASA. Such notice shall
specify the number of shares of common stock with
respect to which the Warrants are then being
exercised. Payment of such shares shall be made
by cash or check payable to TASA either (A)
accompanying the notice of exercise, or (B)
against delivery by TASA of the certificate(s)
representing the shares pursuant to the exercise.
(d) If at any time commencing after the date hereof
and expiring five (5) years thereafter, TASA
proposes to register any of its securities under
the Securities Act of 1933, as amended, it will
give written notice by registered mail, at least
thirty (30) days prior to the filing each of such
registration statements, to Consultant and its
counsel. If Consultant or other holders of at
least 50% of the outstanding Warrants and/or
securities underlying Consultant Warrants notify
TASA within twenty (20) days after receipt of any
such notice of its or their desire to include any
such securities in such proposed registration
statement, TASA shall afford Consultant and such
holders of Warrants and/or shares underlying such
Warrants the opportunity to have any such
securities registered under such registration
statement; provided, however, that TASA shall not
be obligated to do so more than twice; and
provided, further, that if any such registration
relates to a firmly underwritten offering for the
account of TASA and if the managing underwriter of
such offering advises TASA in writing that, in its
opinion, inclusion of such shares as requested by
Consultant or the other holders of the Warrants
would adversely affect such offering, then such
shares shall, to such extent, be excluded from
such registration, on such basis as TASA shall
determine to be fair and equitable.
(e) In the event that TASA receives equity or debt
financing, acquires or merges with another entity,
as a result of Consultant's efforts and/or
introductions, TASA will pay Consultant the
following finders fee: 5% of the first $1,000,000;
4% of the second $1,000,000; 3% of the third
$1,000,000; 2% of the fourth $1,000,000 and 1% of
any remuneration received in excess of $4,000,000,
whether received in cash or in kind. TASA's
obligation to pay compensation pursuant to this
paragraph (d) shall apply to any transaction
resulting from Consultant's efforts or
introductions which is consummated during the term
of this Agreement or within twelve (12) months
following the termination of this Agreement. TASA
shall not be obligated to compensate Consultant in
accordance with this paragraph (d) which is not
consummated because of default by the other party
thereto prior to consummation, the failure of any
conditions precedent to consummation which
conditions are not within TASA's control, the
failure of the Board of Directors of TASA to
approve such transaction or unsatisfactory results
of a due diligence investigation by TASA.
Consultant shall not be entitled to compensation
with respect to introductions to individuals,
companies or other entities with whom TASA has had
previous contacts or discussions. Consultant
acknowledges and agrees that if TASA receives
equity or debt financing, acquires or merges with
another entity as a result of joint efforts
between Consultant and Comprehensive Capital,
Xxxxxxxx X. Xxxxxxx or Xxxxxxxx Xxxxxxx (or any of
their respective affiliates) (collectively,
"Comprehensive"), then TASA shall not be required
to pay duplicative fees to Consultant and
Comprehensive (or any such affiliates), and any
fees payable by TASA pursuant to this Section
shall be shared by Consultant and Comprehensive
(or such affiliates) in such proportions as
Consultant and Comprehensive shall agree and shall
direct TASA in writing.
(f) Consultant will be reimbursed for all documented
reasonable out-of-pocket expenses incurred in the
performance of its responsibilities outlined
above. All expenses over $500.00 will be pre-approved
by TASA.
5. Indemnification.
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(a) TASA shall indemnify Consultant and its affiliates
and their respective directors, officers, employees, agents
and controlling persons (Consultant and each such other
person and entity being an "Indemnified Party" for purposes
of this Section) from and against any and all losses,
claims, damages and liabilities, jointly or severally, to
which such Indemnified Party may become subject under any
applicable federal or state law, or otherwise related to or
arising out of any transaction contemplated by this
Agreement and the performance by Consultant of the services
contemplated by this Agreement, and shall reimburse each
Indemnified Party for all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred
in connection with the investigation of, preparation for or
defense of, any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such
Indemnified Party is a party thereto provided that TASA
shall not be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct
of the Indemnified Party and further provided that such
Indemnified Party agrees to refund such reimbursed expenses
if and to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnifi-
cation. In the event that the foregoing indemnity is
unavailable or insufficient to hold any Indemnified Party
harmless, then TASA shall contribute to amounts paid or
payable by such Indemnified Party in respect of such losses,
claims, damages and liabilities in such proportion as
approximately reflects the relative benefits received by, in
fault of, TASA and such Indemnified Party in connection with
the matters as to which such losses, claims, damages and
liabilities relate and other equitable considerations,
provided however that nothing in this sentence shall be
construed as altering or limiting in any way the effect of
the proviso contained in the immediately preceding sentence.
(b) Consultant shall, jointly and severally, indemnify
TASA and its affiliates and their respective directors,
officers, employees, agents and controlling persons (TASA
and each such other person and entity being an "Indemnified
Party" for purposes of this Section) from and against any
and all losses, claims, damages and liabilities, jointly or
severally, to which such Indemnified Party may become
subject under any applicable federal or state law, or
otherwise related to or arising out of any of the services
rendered by Consultant pursuant to this Agreement and the
performance by Consultant of its obligations contemplated by
this Agreement, and shall reimburse each Indemnified Party
for all reasonable expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with
the investigation, preparation for or defense of any pending
or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party
thereto provided that Consultant shall not be liable for any
of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Indemnified Party
and further provided that such Indemnified Party agrees to
refund such reimbursed expenses if and to the extent it is
finally judicially determined that such Indemnified Party is
not entitled to indemnification. In the event that the
foregoing indemnity is unavailable or insufficient to hold
any Indemnified Party harmless, then Consultant shall
contribute to amounts paid or payable by such Indemnified
Party in respect of such losses, claims, damages and
liabilities in such proportion as approximately reflects the
relative benefits received by, in fault of, Consultant and
such Indemnified Party in connection with the matters as to
which such losses, claims, damages and liabilities relate
and other equitable considerations, provided however that
nothing in this sentence shall be construed as altering or
limiting in any way the effect of the proviso contained in
the immediately preceding sentence.
6. Complete Agreement. This Agreement contains the
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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 an instrument in writing, signed by the
party against which the enforcement of the change, waiver,
discharge or amendment is sought.
7. Binding Effect; Assignment. This Agreement shall
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be binding upon the parties hereto, their heirs, legal
representatives, successors, and assigns and shall not be
assignable by either party, except under prior written consent by
both parties to this Agreement
8. Relationship of the Parties.
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(a) Nothing in this Agreement shall be construed as
establishing a partnership or joint venture between the
parties hereto. TASA specifically understands that
Consultant is acting hereunder as an independent contractor.
Consultant's services hereunder are not exclusive and
Consultant at all times shall be free to perform the same or
similar services for others which shall not be deemed a
conflict of interest nor a breach of this Agreement, however
Consultant agrees not to perform the same or similar
services for any company which is in direct competition with
TASA.
(b) TASA acknowledges that neither Consultant nor any
of its affiliates is an officer, director or agent of TASA,
that in rendering advice or recommendations to TASA,
Consultant is not and will not be responsible for any
management decisions on behalf of TASA. Consultant
acknowledges and agrees that Consultant is not authorized or
empowered to commit or bind TASA to any recommendation,
agreement or course of action. TASA has the sole right, in
the exercise of its business judgment and discretion, to
approve or disapprove of any agreement, transaction or
commitment introduced by Consultant.
9. Disclosure. Any financial advice rendered by
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Consultant pursuant to this Agreement may not be disclosed
publicly in any manner without the prior written approval of
Consultant. All non-public information given to Consultant by
TASA will be treated by Consultant as confidential information,
and 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 Consultant; (ii)
was available to Consultant prior to its disclosure to Consultant
by TASA, provided that such information is not known by
Consultant to be subject to another confidentiality agreement
with another party; or (iii) becomes available to Consultant on a
non-confidential basis from a source other than TASA, provided
that such source is not bound by a confidentiality agreement with
TASA.
10. Miscellaneous.
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(a) All final decisions with respect to consultation,
advice and services rendered by Consultant to TASA shall
rest exclusively with TASA and Consultant shall not have any
right or authority to bind TASA to any obligation or
commitment.
(b) This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(c) Any controversy or claim arising out of or related
to this Agreement shall be settled by arbitration in
accordance with the rules and under the auspices of the
American Arbitration Association; and any arbitration shall
be conducted in the County of New York in the State of New
York.
TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
President
/s/ XXXXX X. XXXXXXXXX
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XXXXX X. XXXXXXXXX
