Exhibit 10.32
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Xxxxxx Capital
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 Tel
(000) 000-0000 Fax
xxx.xxxxxxxxxxxxx.xxx
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September 20, 2004
Attn: Xx. Xxx Xxxxxxxx, Chairman and CEO
Warp Technology Holdings, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RE: FINANCIAL ADVISORY / INVESTMENT BANKING AGREEMENT
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Dear Xx. Xxxxxxxx:
This letter confirms the terms upon which Warp Technology Holdings, Inc.
(OTCBB: WRPT) together with all subsidiaries, affiliates, successors and other
controlled units, either existing or formed subsequent to the execution of this
engagement (the "Company"), engages Xxxxxx Capital LLC ("Xxxxxx"), to act as the
advisor for the Company in financial advisory, investment banking and related
transactions. This Agreement will be deemed to be effective as of the date set
forth above.
1. Scope of Engagement.
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The Company hereby engages Xxxxxx (the "Engagement") to identify on a
"best efforts" basis funding sources and secure financing for the Company
through a private placement of equity and/or debt in one or more
transactions with one or more investors and/or lenders (the "Financing").
The engagement will be exclusive during the term hereof except for the
Company's engagement of Xxxxxxx Securities, Inc.
2. Scope of Work.
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In connection with the Engagement:
x Xxxxxx will familiarize itself to the extent it deems appropriate with
the business, operations, financial condition and prospects of the
Company;
x Xxxxxx will identify and introduce potential sources of Financing for
the Company;
x Xxxxxx will assist the Company and its Board of Directors in
evaluating Financing proposals;
x Xxxxxx will assist the Company and its counsel in finalizing any
Financing arranged by Xxxxxx;
x Xxxxxx will render such other financial advisory and investment
banking services as may, from time to time, be agreed upon by Xxxxxx
and the Company; and
o If requested, Xxxxxx will participate in meetings of the Board of
Directors of the Company (either in person or by telephone, as
appropriate).
3. Company Responsibilities, Representations and Warranties.
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In connection with the Engagement:
o The Company agrees to cooperate with Xxxxxx and will furnish to Xxxxxx
all information and data concerning the Company (the
"Information") which Xxxxxx reasonably deems appropriate for purposes
of rendering its services hereunder, and will provide Xxxxxx access to
its officers, directors, employees and advisors.
o If required, the Company, with Xxxxxx'x assistance, will prepare a
Private Placement Confidential Offering Memorandum (the "Confidential
Memorandum"), which will contain various matters including: (a) a
description of the Company, its business, assets, prospects and
management; (b) the terms and conditions of the private placement
described in the Confidential Memorandum (the "Private Placement") and
of the securities offered; and (c) certain financial information. If
necessary, the Company will update the Confidential Memorandum prior
to completion of the Private Placement.
o The Company represents and warrants to Xxxxxx that all Information
included or incorporated by reference in any documents (including the
Confidential Memorandum, if any) or otherwise made available to Xxxxxx
by the Company to be communicated to possible investors, lenders
and/or other third parties in connection with the Financing: (a) will
be complete and correct and does not and will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading; and (b) any
projected financial information or other forward-looking information
which the Company provides to Xxxxxx will be made by the Company in
good faith, based on management's best estimates at the time and based
on facts and assumptions which the Company believed were reasonable at
the time. Xxxxxx agrees only to communicate Information to possible
investors, lenders or third parties in connection with the Financing
if and to the extent that the Company has approved the documents or
information to be used for such purpose.
o The Company agrees to promptly notify Xxxxxx, in writing, if the
Company believes that any Information that was previously provided to
Xxxxxx has become materially misleading or inaccurate in any way.
o The Company acknowledges and agrees that, in rendering its services
hereunder, Xxxxxx will be using and relying on the Information (and
information available from public sources and other sources deemed
reliable by Xxxxxx) without independent investigation or verification
thereof or independent appraisal or evaluation of the Company or its
business or assets, or any other party to the Financing. Xxxxxx has no
responsibility for the accuracy or completeness of any information,
including the contents of a Confidential Memorandum, if any, regarding
the Company.
o The Company agrees it is solely responsible for the decision to accept
a Financing and acknowledges that Xxxxxx is not responsible for the
due diligence, legal, regulatory, compliance and success or failure of
any Financing.
o Any advice rendered by Xxxxxx during the Engagement or in meetings
with the Company or its Board of Directors, as well as any written
materials provided by Xxxxxx, are intended solely for the benefit and
confidential use of the Company and will not be reproduced,
summarized, described or referred to or given to any other person for
any purpose without Xxxxxx'x prior written consent (except as may be
required by law).
o The Company represents to Xxxxxx that the Company has not engaged in
any public or private offering of securities to be offered in the
Financing or taken or failed to take any action that would cause any
Financing not to qualify for an applicable exemption from registration
under the Securities Act of 1933, as amended (the "Act"). Further the
Company and Xxxxxx each agree not to solicit any offerees or take any
action which might jeopardize the availability of exemption under the
Act with respect to the Financing.
4. Fees.
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4.1 Capital or Debt Financing. As compensation for services rendered
in connection with each Financing completed by the Company, Xxxxxx will be
paid upon the closing for each such Financing a cash fee equal to 6% of the
amount invested by any Xxxxxx-Identified Parties (as defined below) on any
equity, subordinated debt or convertible debt
raised ("Capital / Debt Fee") prior to any deductions or setoffs such as
fees, deposits, reserves, expenses, or other amounts withheld or paid by
the investor or lender, along with warrants described below. Each
transaction will be considered on its own and not integrated for purposes
of this fee calculation. To the extent that Xxxxxx has used any other
agents or broker dealers, Xxxxxx will pay them directly or at Xxxxxx'x
option, the Company will pay such third-party agents and reduce Xxxxxx'x
Capital / Debt Fee by such amount and Xxxxxx will indemnify and hold
harmless the Company from any claim made by any such agent or broker-dealer
(used by Xxxxxx). Xxxxxx agrees that no agents or broker dealers shall be
engaged without the Company's prior written consent. Any unpaid expenses
approved by the Company in accordance with Section 5 below will be
reimbursed to Xxxxxx as well at each closing of a capital or debt
Financing.
4.2 Warrants. Xxxxxx will receive warrants to purchase such number of
shares of common stock equal to 8% of the aggregate number of fully-diluted
and/or converted shares of common stock as are purchased by and/or issuable
upon conversion or exercise of other securities issued in a Financing to
Xxxxxx-Identified Parties. With respect to any debt financing, Xxxxxx will
receive warrants to purchase such number of shares of common stock equal to
8% of the principal amount of debt (on as-if-converted basis) plus 8%
warrant coverage on any other securities issued as part of such debt
financing to Xxxxxx-Identified Parties. In each case, the warrants shall be
purchased for a nominal sum and shall be exercisable for five (5) years
with a strike price equal to the Market Price. Unless otherwise agreed by
the parties, "Market Price" shall mean the fair market value of the common
stock (closing bid price, if traded on any market) on the day prior to
closing a Financing or other related transaction. The terms of the warrants
shall be set forth in one or more agreements in form and substance
reasonably satisfactory to Xxxxxx and the Company. The warrant agreements
shall contain customary terms, including without limitation, provisions for
"cashless" exercise, change of control, price based anti-dilution, and
customary demand and piggyback registration rights.
4.3 Follow-on Financing / Acquisition. For a period of twelve (12)
months following termination of this Agreement and if a Financing or
related transaction is completed with any party (i) which Xxxxxx has
identified, (ii) in respect of which Xxxxxx has rendered advice, or (iii)
with which Xxxxxx has directly or indirectly held discussions or furnished
information regarding the Company, including investors in any original
Financing or related transaction (each a "Xxxxxx-Identified Party"), Xxxxxx
shall be entitled to receive fees as set forth in this Section 4 with
respect to any such transaction. Notwithstanding the foregoing, the term
"Xxxxxx-Identified Party" shall not include any parties introduced to the
Company by Xxxxxxx Securities, Inc. for which the Company pays a fee to
Xxxxxxx, XX Ventures, ISIS Capital Management, LLC, TICC Capital, Xxxxx
Associates, or any of their respective affiliates. If the Company enters
into an acquisition or similar transaction within twelve (12) months of the
termination of this Agreement with any Xxxxxx-Identified Party, the Company
and Xxxxxx shall negotiate compensation to be paid to Xxxxxx as is
customary for a transaction of such type and size. In the event that the
Company consummates any transaction pursuant to this Section 4.3
("Follow-on Transaction"), the Company hereby agrees to execute and
deliver, prior to closing of such Follow-on Transaction, an irrevocable
instruction letter to the party with whom such transaction is consummated
(the "Third Party Funder") referencing the fees due and owing to Xxxxxx and
instructing the Third Party Funder to wire the fees directly to an account
designated by Xxxxxx. The Company hereby acknowledges that Xxxxxx intends
to, and shall be entitled to, send such Third Party Funder a letter (a)
notifying them of the fee arrangements between the Company and Xxxxxx, and
(b) providing notice that any closing that does not include payment to
Xxxxxx will constitute a breach by the Company under this Agreement.
5. Expenses.
---------
The Company will reimburse Xxxxxx for all legal fees and expenses (in
an amount not to exceed to $10,000 with respect to a Financing) and
other out-of-pocket expenses (including independent experts retained by
Xxxxxx with the Company's consent) reasonably incurred by it in connection
with its representation and services hereunder. Xxxxxx shall submit an
invoice to the Company for all such fees and expenses and the Company shall
pay to Xxxxxx all such fees and expenses referred to above whether or not
any Financing is consummated. Such out-of-pocket and legal expense
reimbursement will be payable promptly upon submission by Xxxxxx of
statements to the Company. If elected by Xxxxxx, the Company may be
requested to pay an expense retainer or cost allowance in advance to
Xxxxxx.
6. Scope of Responsibility.
------------------------
Neither Xxxxxx nor any of its affiliates (nor any of their respective
control persons, directors, officers, employees or agents) shall be liable
to the Company or to any other person claiming through the Company for any
claim, loss, damage, liability, cost or expense suffered by the Company or
any such person arising out of or related to Xxxxxx'x Engagement hereunder
except for a claim, loss or expense that arises solely out of or is based
solely upon any action or failure to act by Xxxxxx, other than an action or
failure to act undertaken at the request or with the consent of the
Company, that is found in a final judicial determination to constitute bad
faith, willful misconduct or gross negligence on the part of Xxxxxx.
Xxxxxx agrees to perform its services hereunder in accordance with all
applicable securities and other laws, rules and regulations, the
requirements of the National Association of Securities Dealers and other
applicable requirements.
7. Indemnification.
----------------
Since Xxxxxx will be acting on behalf of the Company in connection
with its engagement, the Company agrees to indemnify Xxxxxx as set forth in
Exhibit A to this Agreement. Such indemnification agreement is an integral
part of this Agreement and the terms thereof are incorporated by reference
herein. Such indemnification agreement shall survive any termination or
completion of Xxxxxx'x engagement hereunder.
8. Termination.
------------
The term of this Agreement is sixty (60) days from the date hereof;
provided, however, that Xxxxxx'x Engagement hereunder may be terminated,
with or without cause, by either the Company or Xxxxxx upon thirty (30)
days prior written notice to the other party; provided, further, that such
termination will not affect Xxxxxx'x right to (a) expense reimbursement
under Section 5, (b) receipt of payment of any fees or compensation
pursuant to Section 4, (c) the indemnification contemplated by Section 7
above, and (d) any other compensation due under any other provision of this
Agreement.
9. Right of First Refusal and Other Transactions.
----------------------------------------------
If, in the twelve (12) months following successful completion of the
Financing, the Company elects to raise additional funds from a private
placement of equity and/or debt, Xxxxxx will have the first right of
refusal to secure such funds. In addition, if in the twelve (12) months
following the completion of the Financing, the Company seeks to engage in
any mergers and/or acquisitions transactions, Xxxxxx will have the right of
first refusal to advise the Company on any such transactions on mutually
agreeable terms if the Company elects to engage an advisor. Notwithstanding
the foregoing, the Company shall not be required to engage Xxxxxx
exclusively in connection with such financings or acquisitions.
10. Governing Law; Jurisdiction; Waiver of Jury Trial.
--------------------------------------------------
10.1 This Agreement will be deemed made in New York and will be
governed by the laws of the State of New York without regard to the
conflict of law principles contained therein. The Company irrevocably
submits to the jurisdiction of any court of the State of New York, for the
purpose of any suit, action or other proceeding arising out of this
Agreement, or any of the agreements or transactions contemplated hereby,
which is brought by or against the Company. Each of the Company (and, to
the extent permitted by law, on behalf of the Company's equity holders and
creditors) and Xxxxxx hereby knowingly, voluntarily and irrevocably waive
any right it may have to a trial by jury in respect of any claim based
upon, arising out of or in connection with this Agreement and the
transactions contemplated hereby (including, without limitation, any
Financing or Acquisition).
10.2 Any dispute arising hereunder, if not settled by mutual
agreement, shall, at Xxxxxx'x option, and, upon written notice by Xxxxxx to
the Company be settled by final and binding arbitration in New York, New
York. The arbitration shall be conducted in accordance with the Commercial
Dispute Resolution Procedures and Rules of the American Arbitration
Association ("AAA Rules") by a single disinterested arbitrator appointed in
accordance with such AAA Rules.
10.3 The arbitrator shall have authority to award relief under legal
or equitable principles, including interim or preliminary relief, and to
allocate responsibility for the costs of the arbitration and to award
recovery of attorneys' fees and expenses in such manner as is determined by
the arbitrators.
10.4 Judgment upon the award rendered by the arbitrators may be
entered in any court having personal and subject matter jurisdiction. Each
party hereby submits to the in personam and subject matter jurisdiction of
the federal and state courts in the County of New York for the purpose of
confirming any such award and entering judgment thereon.
All proceedings under Sections 10.2 through 10.4 and all evidence given or
discovered pursuant hereto, shall be maintained in confidence by both
parties, except as required by law.
11. No Rights in Equityholders, Creditors.
--------------------------------------
This Agreement does not create, and will not be construed as creating,
rights enforceable by any person or entity not a party hereto, except those
entitled thereto by virtue of Section 7 herein. The Company acknowledges
and agrees that (a) Xxxxxx will act as an independent contractor and is
being retained solely to assist the Company in its efforts to help with
possible Financing(s), and that, Xxxxxx is not being retained to advise the
Company on, or to express any opinion as to, the wisdom, desirability or
prudence of consummating any Financing; and (b) Xxxxxx is not and will not
be construed as a fiduciary of the Company or any affiliate thereof and
will have no duties or liabilities to the equity holders or creditors of
the Company, and affiliates of the Company or any other person by virtue of
this Agreement and the retention of Xxxxxx hereunder, all of which duties
and liabilities are hereby expressly waived. Neither equity holders nor
creditors of the Company are intended beneficiaries hereunder. The Company
confirms that it will rely on its own counsel, accountants and other
similar expert advisors for legal (including compliance with state and
federal securities laws), accounting, tax and other similar advice.
12. Xxxxxx; Other Activities.
-------------------------
12.1 It is understood and agreed that Xxxxxx and/or its affiliates
may, from time to time, make a market in, have a long or short position,
buy and sell or otherwise affect transactions for customer accounts and for
their own respective accounts in the securities of, or perform investment
banking or other services for, the Company and other entities which are or
may be the subject of the Engagement contemplated by this Agreement
(provided that such activities are in accordance with securities laws
including those governing conduct while in possession of material
non-public information). This is to confirm that possible investors
identified or contacted by Xxxxxx could include entities in
respect of which Xxxxxx may have rendered or may in the future render
services.
12.2 The Company acknowledges that Xxxxxx and its affiliates are in
the business of providing financial services and consulting advice to
others. Nothing herein contained shall be construed to limit or restrict
Xxxxxx in conducting such business with respect to others, or in rendering
such advice to others, except as such advice may relate to matters relating
to the Company's business and properties.
12.3 The Company shall not make or issue any public announcements or
other communications regarding or relating to this Agreement without the
prior approval of Xxxxxx.
13. Miscellaneous.
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13.1 This Agreement may not be modified or amended except in writing
executed in counterparts, each of which will be deemed an original and all
of which will constitute one and the same instrument.
13.2 This Agreement supersedes all prior agreements between the
parties concerning the subject matter hereof.
13.3 Neither party may assign this Agreement without the prior written
consent of the other party.
13.4 If any provision of this Agreement shall for any reason be held
invalid or unenforceable by any court, governmental agency or arbitrator of
competent jurisdiction, such invalidity or unenforceability shall not
affect any other provision hereof, but this Agreement shall be construed as
if such invalid or unenforceable provision had never been contained herein.
13.5 The provisions contained in Sections 3, 4, 5, 7, 8, 9, 10, 11 and
13 shall survive expiration or termination of this Agreement.
13.6 All notices, requests, demands and other communications hereunder
shall be given in writing and shall be (a) personally delivered; (b) sent
by telecopier; (c) sent by an internationally-recognized overnight courier,
or (d) sent to the parties at their respective addresses indicated herein
by registered or certified mail, return receipt requested and postage
prepaid. The respective addresses to be used for all such notices, demands
or requests are as follows:
If to the Company,
Warp Technology Holdings, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxxx
with a copy to:
The same address listed above for the Company, Attn: Xxxxxx Xxxxxxxxx.
Or to such other person or address as the Company shall designate in
writing to the other party.
If to Xxxxxx,
Xxxxxx Capital LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to:
The same address listed above for Xxxxxx, Attn: General Counsel.
If personally delivered or delivered via internally-recognized
overnight courier, such communication shall be deemed delivered upon actual
receipt; if transmitted by telecopier pursuant to this Section 13, such
communication shall be deemed delivered the next business day after
transmission (and sender shall bear the burden of proof of delivery); and
if sent by mail pursuant to this Section 13, such communication shall be
deemed delivered as of the fifth (5th) business day following deposit of
such communication in the mail. Either party to this Agreement may change
its address at any time by giving notice thereof in accordance with this
Section 13.
If the foregoing correctly sets forth our Agreement, please so indicate by
signing below and returning an executed copy to Xxxxxx Capital LLC. This
Agreement may be executed by the exchange by facsimile/telecopy or
e-mail/electronic signature between the Parties of signed counterparts of this
Agreement. We look forward to working with you and the rest of the management
team in a long-term relationship that assists the Company in achieving its
business goals.
Sincerely,
Xxxxxx Capital LLC
By: /s/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
Accepted and approved:
WARP TECHNOLOGY HOLDINGS, INC.
By: /s/ Xxx Xxxxxxxx
---------------------------
Name: Xxx Xxxxxxxx
Title: Chairman & CEO
EXHIBIT A - INDEMNIFICATION PROVISIONS
In connection with our engagement of Xxxxxx as our consultant and advisor,
the Company hereby agrees to indemnify and hold Xxxxxx and its affiliates
(which, purposes of this indemnity, shall include Xxxxxx Capital Group LLC, a
Delaware limited liability company) and the directors, officers, partners,
shareholders, members, employees and agents of Xxxxxx and each other person, if
any, controlling Xxxxxx or any of its affiliates (collectively the "Indemnified
Persons"), harmless from and against any and all claims, actions, suits,
proceedings (including those of shareholders), damages, liabilities and expenses
incurred by any of them (including, but not limited to, fees and expenses of
counsel) which are (A) related to or arise out of (i) any actions taken or
omitted to be taken (including any untrue statements made or any statements
omitted to be made) by the Company, or (ii) any actions taken or omitted to be
taken by any Indemnified Person in connection with the Company's engagement of
Xxxxxx pursuant to this Agreement between the Xxxxxx and the Company, or (B)
otherwise related to or arising out of Xxxxxx'x activities on our behalf
pursuant to Xxxxxx'x engagement under this Agreement, and the Company shall
reimburse any Indemnified Person for all expenses (including, but not limited
to, fees and expenses of counsel) as incurred by such Indemnified Person in
connection with investigating, preparing or defending any such claim, action,
suit or proceeding (collectively a "Claim"), whether or not in connection with
pending or threatened litigation in which any Indemnified Person is a party. The
Company will not, however, be responsible for any Claim which is finally
judicially determined to have resulted exclusively from the gross negligence or
willful misconduct of any person seeking indemnification hereunder. The Company
further agrees that no Indemnified Person shall have any liability to the
Company for or in connection with Xxxxxx'x engagement
under the Agreement except for any Claim incurred by the Company solely as a
direct result of any Indemnified Person's gross negligence or willful
misconduct.
The Company further agrees that it will not, without the prior written
consent of Xxxxxx xxxxxx, compromise or consent to the entry of any judgment in
any pending or threatened Claim in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Person is an actual or
potential party to such Claim), unless such settlement, compromise or consent
includes a legally binding, unconditional, and irrevocable release of each
Indemnified Person hereunder from any and all liability arising out of such
Claim.
Promptly upon receipt by an Indemnified Person of notice of any complaint
or the assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person shall notify
the Company in writing of such complaint or of such assertion or institution,
but failure to so notify the Company shall not relieve the Company from any
obligation it may have hereunder, unless, and only to the extent that, such
failure results in the forfeiture by it of substantial rights and defenses, and
such failure to so notify the Company will not in any event relieve it from any
other obligation or liability it may have to any Indemnified Person otherwise
than under this Agreement. If the Company so elects or is requested by such
Indemnified Person, it will assume the defense of such Claim, including the
employment of counsel reasonably satisfactory to such Indemnified Person and the
payment of the fees and expenses of such counsel. In the event, however, that
such Indemnified Person reasonably determines in its sole judgment that having
common counsel would present such counsel with a conflict of interest or such
Indemnified Person concludes that there may be legal defenses available to it or
other Indemnified Persons different from or in addition to those available to
the Company, then such Indemnified Person may employ its own separate counsel to
represent or defend it in any such Claim and the Company shall pay the
reasonable fees and expenses of such counsel. Notwithstanding anything herein to
the contrary, if the Company fails timely or diligently to defend, contest, or
otherwise protect against any Claim, the relevant Indemnified Party shall have
the right, but not the obligation, to defend, contest, compromise, settle,
assert crossclaims or counterclaims, or otherwise protect against the same, and
shall be fully indemnified by the Company therefor, including, but not limited
to, for the fees and expenses of its counsel and all amounts paid as a result of
such Claim or the compromise or settlement thereof. In any Claim in which the
Company assumes the defense, the Indemnified Person shall have the right to
participate in such defense and to retain its own counsel therefor at its own
expense.
The Company agrees that if any indemnity sought by an Indemnified Person
hereunder is held by a court to be unavailable for any reason, then (whether or
not Xxxxxx is the Indemnified Person) the Company and Xxxxxx shall contribute to
the Claim for which such indemnity is held unavailable in such proportion as is
appropriate to reflect the relative benefits to the Company, on the one hand,
and Xxxxxx, on the other, in connection with Xxxxxx'x engagement by the Company
under the Agreement, subject to the limitation that in no event shall the amount
of Xxxxxx'x contribution to such Claim exceed the amount of fees actually
received by Xxxxxx from the Company pursuant to Xxxxxx'x engagement under the
Agreement. The Company hereby agrees that the relative benefits to it, on the
one hand, and Xxxxxx, on the other hand, with respect to Xxxxxx'x engagement
under the Agreement shall be deemed to be in the same proportion as (a) the
total value paid or proposed to be paid or received by the Company or its
stockholders as the case may be, pursuant to the transaction (whether or not
consummated) for which Xxxxxx is engaged to render services bears to (b) the fee
paid or proposed to be paid to Xxxxxx in connection with such engagement.
The Company's indemnity, reimbursement and contribution obligations under
this Agreement shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that an Indemnified Party may have at law or at
equity.
Should Xxxxxx, or any of its directors, officers, partners, shareholders,
members, agents or employees, be required or be requested by the Company to
provide documentary evidence or testimony in connection with any proceeding
arising from or relating to Xxxxxx'x engagement under the Agreement, the Company
agrees to pay all reasonable expenses (including, but not limited to, fees and
expenses of counsel) in complying therewith and customary fees for sworn
testimony or preparation thereof, payable in advance.
