FIRST METROPOLITAN SECURITIES, INC.
_________________, 1997
TTR Inc.
0 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx, President
Gentlemen:
This letter, when executed by the parties hereto, will constitute
an agreement between TTR Inc. (the "Company") and First Metropolitan Securities,
Inc. ("First Metropolitan") pursuant to which the Company agrees to retain First
Metropolitan and First Metropolitan agrees to be retained by the Company under
the terms and conditions set forth below.
1. The Company hereby retains First Metropolitan to perform
consulting services related to corporate finance and other financial services
matters, and First Metropolitan hereby accepts such retention. In this regard,
subject to the terms set forth below, First Metropolitan shall furnish to the
Company advice and recommendations with respect to such aspects of the business
and affairs of the Company as the Company shall, from time to time, reasonably
request upon reasonable notice.
2. As compensation for the services described in paragraph 1
above, the Company shall pay to First Metropolitan a yearly fee of $50,000, for
a period of two years, both years fee to be paid in advance, in full on the date
hereof. In addition, the Company will reimburse First Metropolitan for any and
all reasonable expenses incurred by First Metropolitan in the performance of its
duties hereunder, and First Metropolitan shall account for such expenses to the
Company. Such reimbursement shall accumulate and be paid monthly. Nothing
contained herein shall prohibit First Metropolitan from receiving any additional
compensation under paragraphs 3 and 4 herein or otherwise.
3. In addition, First Metropolitan shall hold itself ready to
assist the Company in evaluating and negotiating particular contracts or
transactions, if requested to do so by the Company, upon reasonable notice, and
will undertake such evaluations and negotiations upon prior written agreement as
to additional compensation to be paid by the Company to First Metropolitan with
respect to such evaluations and negotiations. Nothing herein shall require the
Company to utilize First Metropolitan's services in any particular transactions
nor shall limit the Company's obligations arising under any other agreement or
understanding.
4. The Company and First Metropolitan further acknowledge and
agree that First Metropolitan may act as a finder or financial consultant in
various business transactions in which the Company may be involved, such as
mergers, acquisitions or joint ventures. The Company hereby agrees that in the
event First Metropolitan shall introduce to the Company another party or entity,
and that as a result of such introduction, a transaction is consummated, the
Company shall pay to First Metropolitan a fee equal to (i) five percent (5%) of
the first $1,000,000; (ii) four percent (4%) of the second $1,000,000; (iii)
three percent (3%) of the third $1,000,000; and (iv) two percent (2%) of any
consideration over $4,000,000 involved in any transaction. Such fee shall be
paid in cash at and subject to the closing of the transaction to which it
relates, and shall be payable whether or not the transaction involves stock, or
a combination of stock and cash, or is made on the installment sale basis. In
addition, if the Company shall, within 36 months immediately following the
termination of this Agreement, consummate a transaction with any party or entity
introduced by First Metropolitan to the Company, the Company shall pay to First
Metropolitan a fee with respect to such transaction calculated in accordance
with this paragraph. Nothing herein shall prevent the Company from utilizing
other individuals or entities in such capacities nor shall limit the Company's
obligations arising under any other agreement or understanding. As used herein,
"Company" shall include any and all subsidiaries and/or affiliates of the
Company.
5. All obligations of First Metropolitan contained herein shall
be subject to First Metropolitan's reasonable availability for such performance,
in view of the nature of the requested service and the amount of notice
received. First Metropolitan shall devote such time and effort to the
performance of its duties hereunder as First Metropolitan shall determine is
reasonably necessary for such performance. First Metropolitan may look to such
others for such factual information, investment recommendations, economic advice
and/or research, upon which to base its advice to the Company hereunder, as it
shall deem appropriate. The Company shall furnish to First Metropolitan all
information relevant to the performance by First Metropolitan of its obligations
under this Agreement, or particular projects as to which First Metropolitan is
acting as advisor, which will permit First Metropolitan to know all facts
material to the advice to be rendered, and all material or information
reasonably requested by First Metropolitan. In the event that the Company fails
or refuses to furnish any such material or information reasonably requested by
First Metropolitan, and thus prevents or impedes First Metropolitan's
performance hereunder, any inability of First Metropolitan to perform shall not
be a breach of its obligations hereunder.
6. Nothing contained in this Agreement shall limit or restrict
the right of First Metropolitan or of any partner, employee, agent or
representative of First Metropolitan, to be a partner, director, officer,
employee, agent or representative of, or to engage in, any other business,
whether of a similar nature or not, nor to limit or restrict the right of First
Metropolitan to render services of any kind to any other corporation, firm,
individual or association.
7. First Metropolitan will hold in confidence any confidential
information which the Company provides to First Metropolitan pursuant to this
Agreement which is
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designated by an appropriate stamp or legend as being confidential.
Notwithstanding the foregoing, First Metropolitan 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 First
Metropolitan; (ii) of which it had independent knowledge prior to disclosure;
(iii) which comes into the possession of First Metropolitan 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 First Metropolitan by
governmental requirements. If First Metropolitan is requested or required (by
oral questions, interrogatories, requests for information or document subpoenas,
civil investigative demands, or similar process) to disclose any confidential
information supplied to it by the Company, or the existence of other
negotiations in the course of its dealings with the Company or its
representatives, First Metropolitan shall, unless prohibited by law, promptly
notify the Company of such request(s) so that the Company may seek an
appropriate protective order.
8. The Company agrees to indemnify and hold harmless First
Metropolitan, its partners, employees, agents, representatives and controlling
persons (and the officers, directors, employees, agents, representatives and
controlling persons of each of them) from and against any and all losses,
claims, damages, liabilities, costs and expenses (and all actions, suits,
proceedings or claims in respect thereof) and any legal or other expenses in
giving testimony or furnishing documents in response to a subpoena or otherwise
(including, without limitation, the cost of investigating, preparing or
defending any such action, suit, proceeding or claim, whether or not in
connection with any action, suit, proceeding or claim in which First
Metropolitan is a party), as and when incurred, directly or indirectly, caused
by, relating to, based upon or arising out of First Metropolitan's service
pursuant to this Agreement so long as First Metropolitan shall not have
committed an intentional or willful misconduct, or shall have acted grossly
negligent, in connection with the services which form the basis of the claim for
indemnification. The Company further agrees that First Metropolitan shall incur
no liability to the Company or any other party on account of this Agreement or
any acts or omissions arising out of or related to the actions of First
Metropolitan relating to this Agreement or the performance or failure to perform
any services under this Agreement except for First Metropolitan's intentional or
wilful misconduct. This paragraph shall survive the termination of this
Agreement.
9. This Agreement may not be transferred, assigned or delegated
by any of the parties hereto without the prior written consent of the other
party hereto.
10. The failure or neglect of the parties hereto to insist, in
any one or more instances, upon the strict performance of any of the terms or
conditions of this Agreement, or their waiver of strict performance of any of
the terms or conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
11. This Agreement is for a term of twenty-four (24) months and
may not be terminated by the Company. This Agreement may be terminated by First
Metropolitan at any
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time upon 30 days' notice; provided First Metropolitan shall repay any portion
of their fee which was not earned on the effective date of such termination
($6,250.00 multiplied by the number of months paid in advance). Paragraphs 4, 7
and 8 shall survive the expiration or termination of this Agreement under all
circumstances.
12. Any notices hereunder shall be sent to the Company and to
First Metropolitan at their respective addresses set forth above. Any notice
shall be given by certified mail, return receipt requested, postage prepaid, and
shall be deemed to have been given when deposited in the United States mail.
Either party may designate any other address to which notice shall be given, by
giving written notice to the other of such change of address in the manner
herein provided.
13. This Agreement has been made in the State of New York and
shall be construed and governed in accordance with the laws thereof without
giving effect to principles governing conflicts of law.
14. This Agreement contains the entire agreement between the
parties, may not be altered or modified, except in writing and signed by the
party to be charged thereby, and supersedes any and all previous agreements
between the parties relating to the subject matter hereof.
15. This Agreement shall be binding upon the parties hereto, the
indemnified parties referred to in the Indemnification Provisions, and their
respective heirs, administrators, successors and permitted assigns.
If you are in agreement with the foregoing, please execute two
copies of this letter in the space provided below and return them to the
undersigned.
Very truly yours,
FIRST METROPOLITAN SECURITIES, INC.
By: _____________________________
Name:
Title:
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST ABOVE WRITTEN
TTR INC.
By: ___________________________
Xxxx X. Xxxxxxx, President
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