EXHIBIT 10.1
EXECUTION COPY
REVENUE SHARING AGREEMENT
This Revenue Sharing Agreement (this "AGREEMENT") is made and entered
into as of the 5th day of October, 2005, between New Century Equity Holdings
Corp., a Delaware corporation ("NCEH"), and ACP Investments LP (d/b/a Ascendant
Capital Partners), a Delaware limited partnership ("ASCENDANT").
WITNESSETH:
WHEREAS, NCEH desires to provide capital to Ascendant in return for an
interest in the revenues generated by Ascendant and its Investments (as defined
herein) and NCEH also intends to provide marketing services to Ascendant;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements of the parties herein contained, the parties hereto
hereby agree as follows:
Section 1. DEFINITIONS.
1.1. "AUM" shall mean assets that are managed by Ascendant and its
Investments.
1.2. "BUDGET" shall mean that certain budget prepared by Ascendant that is
attached hereto as EXHIBIT 1.2.
1.3. "EFFECTIVE DATE" shall mean October 1, 2005.
1.4. "FUNDS" shall mean: ACP Strategic Opportunities Fund II, LLC, a
Delaware Limited Liability Company; ACP Advantage Series Strategic Opportunities
Fund, a Series of ACP Funds Trust, a Delaware Statutory Trust; ACP Adviser
Series Strategic Opportunities Fund, a Series of ACP Funds Trust, a Delaware
Statutory Trust; ACP Institutional Series Strategic Opportunities Fund, a Series
of ACP Funds Trust, a Delaware Statutory Trust; and any other funds that
Ascendant or any of the Principals forms after the Effective Date.
1.5. "FUND DOCUMENTS" shall mean the offering memorandums, subscription
agreements and any other marketing materials for the Funds.
1.6. "GENERAL PARTNER" shall mean Ascendant Holdings, LLC.
1.7. "INVESTMENT ADVISORY COMMITTEE" means a committee that is responsible
for assuring that the Ascendant portfolio management team is following the
guidelines specified in the Fund Documents. The Investment Advisory Committee
shall consist of Xxxx Xxxxxxx, Xxxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx and one person
appointed by NCEH, who shall initially be Xxxxxx Xxxxx.
1.8. "INVESTMENTS" means the Funds and any other investments, subsidiaries,
joint ventures, advisory or subadvisory arrangements or other ventures that
Ascendant now or hereafter owns or participates in.
1.9. "NCEH EVENT OF DEFAULT" shall mean either of the following:
(a) NCEH fails to satisfy its obligation to make a Subsequent Payment
in accordance with Section 2.1 of this Agreement and the conditions set forth in
Section 2.3(c) of this Agreement have been satisfied.
(b) NCEH files a petition for bankruptcy.
1.10. ORGANIZATIONAL DOCUMENTS shall mean with respect to any entity the
certificate or articles of incorporation, by-laws, certificate of limited
partnership, partnership agreement, certificate of formation, limited liability
company agreement and any other organizational document of such entity.
1.11. "PRINCIPALS" shall mean at any time those of the following who are
employed by Ascendant at such time: Xxxx Xxxxxxx, Xxxxxxx Xxxxxx and Xxxxxxxxxxx
X. Xxxxxxxx.
1.12. "PRINCIPALS AGREEMENT" shall mean that certain agreement dated as of
the date hereof by and among NCEH and Xxxx Xxxxxxx, Xxxxxxx Xxxxxx and
Xxxxxxxxxxx X. Xxxxxxxx and the other parties thereto, a copy of which is
attached hereto as EXHIBIT 1.12.
1.13. "REVENUE INTEREST" shall mean the right to receive a payment from
Ascendant in cash, not later than thirty (30) days after the end of each
calendar quarter ending after the Effective Date, equal to the Applicable
Percentage (as herein defined) of the revenues generated by Ascendant during
such quarter from AUM or through other sources, including revenues generated by
or from any Investments, net of any agreed commissions paid to third parties or
aid to NCEH pursuant to Section 5.6(b). Except as otherwise provided in Section
5.7, for the purposes of this Agreement, the "APPLICABLE PERCENTAGE" shall be
determined as follows: (a) if the fair market value of AUM is less than
$40,000,000 at the end of any month during such calendar quarter, the Applicable
Percentage for such quarter shall be 50%; (b) if the fair market value of AUM is
less than $200,000,000 at the end of any month during such calendar quarter and
is $40,000,000 or greater at the end of every month during such calendar
quarter, the Applicable Percentage for such quarter shall be 40%; (c) if the
fair market value of AUM is $200,000,000 or greater at the end of every month
during such calendar quarter, the Applicable Percentage for such quarter shall
be 30%.
Section 2. SALE AND PURCHASE OF REVENUE INTEREST.
2.1. SALE AND PURCHASE OF REVENUE INTEREST. At the Closing (as defined
below) upon the terms and subject to the conditions contained in this Agreement,
Ascendant shall sell to NCEH and NCEH shall purchase from Ascendant, all right,
title and interest in and to the Revenue Interest (the "SALE"), at an aggregate
purchase price of $1,550,000 (the "PURCHASE PRICE"). The Purchase Price shall be
payable in four equal installments with the first installment payable at the
Closing and, subject to the provisions of this Agreement, the second installment
payable on January 5, 2006, the third installment payable on April 5, 2006 and
the fourth installment payable on July 5, 2006 (the second, third and fourth
installments being referred to herein as the "SUBSEQUENT INSTALLMENTS" and the
dates on which the Subsequent Installments are due being referred herein as the
"PAYMENT DATES").
2.2. CLOSING. The closing of the Sale shall take place simultaneously with
the execution and delivery of this Agreement at the offices of Ascendant, 1235
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Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (the "CLOSING") at a time mutually
agreed upon by the parties hereto and shall be effective for all purposes as of
the Effective Date.
2.3. DELIVERIES AND CONDITIONS.
(a) DELIVERIES OF NCEH. At the Closing, NCEH shall deliver:
(i) $387,500 by wire transfer to an account designated in writing
by Ascendant.
(ii) A Certificate signed by a duly authorized officer of NCEH
stating that all of the representations and warranties of NCEH contained in this
Agreement are true and correct as of the date hereof.
(iii) Such other documents and instruments as may be reasonably
requested by Ascendant or its counsel.
(iv) A copy of the Principals Agreement duly executed by NCEH.
(b) DELIVERIES OF ASCENDANT. At the Closing, Ascendant shall deliver
(i) A copy of the Principals Agreement duly executed by each of
the Principals and each other limited partner of Ascendant.
(ii) Certificates signed by each of the Principals stating that
all of the representations and warranties of Ascendant contained in this
Agreement are true and correct as of the date hereof.
(iii) Such other documents and instruments as may be reasonably
requested by NCEH or its counsel.
(c) CONDITIONS TO SUBSEQUENT INSTALLMENTS. The obligation of NCEH to
pay each of the Subsequent Installments shall be subject to the fulfillment on
or before the Payment Date for such Subsequent Installment of the following
conditions:
(i) The representations and warranties of Ascendant contained in
this Agreement are true and correct on and as of such Payment Date as though
such representations and warranties had been made on and as of such Payment
Date.
(ii) Ascendant shall have performed and complied with all
agreements, covenants, obligations and conditions contained in this Agreement
that it is required to perform or comply with at or prior to such Payment Date
and shall not otherwise be in breach of this Agreement.
(iii) Ascendant shall have delivered to NCEH at or prior to such
Payment Date (x) certificates signed by each of the Principals certifying to the
matters set forth in clauses (i) and (ii) above and (y) such other documents and
instruments as may be reasonably requested by NCEH or its counsel.
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Section 3. REPRESENTATIONS AND WARRANTIES OF ASCENDANT.
Ascendant represents and warrants to NCEH that:
3.1. CORPORATE EXISTENCE AND POWER. Ascendant and each of the entities
listed on SCHEDULE 3.1 are duly organized, validly existing and in good standing
under the laws of the jurisdiction under which it was formed, and has all
requisite corporate power and authority to own, lease and operate its properties
and assets and to carry on its business as presently being conducted.
3.2. CORPORATE AUTHORIZATION; APPROVALS. The execution, delivery and
performance by Ascendant and the General Partner of this Agreement and the
consummation by Ascendant and the General Partner of the transactions
contemplated hereby are within Ascendant's and the General Partner's partnership
or limited liability company powers and have been duly authorized by all
necessary partnership or limited liability company action. Assuming that this
Agreement constitutes the valid and binding obligation of NCEH, this Agreement
constitutes a valid and binding agreement of Ascendant and the General Partner,
enforceable in accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or
affecting creditors' rights, or by general equity principles, including
principles of commercial reasonableness, good faith and fair dealing).
3.3. GOVERNMENTAL AUTHORIZATION, REGISTRATION, ETC. The execution, delivery
and performance by Ascendant of this Agreement and the consummation by Ascendant
of the transactions contemplated hereby do not require any filing or
registration with, notification to, or authorization, consent or approval of,
any federal, state or local governmental authority, court, administrative or
regulatory agency or commission (each a "GOVERNMENTAL ENTITY").
3.4. NON-CONTRAVENTION; REAL PROPERTY. The execution, delivery and
performance by Ascendant of this Agreement and the consummation by Ascendant of
the transactions contemplated hereby:
(a) do not contravene or conflict with the Organizational Documents
of Ascendant or the General Partner or any of the Investments.
(b) to Ascendant's knowledge, violate, conflict with or result in a
breach of any law applicable to Ascendant or any of its Investments or assets,
or
(c) violate, result in a breach of, constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
result in the termination of, accelerate the performance required by, result in
the creation or imposition of any lien upon any of the properties or assets of
Ascendant under, or require any consent, approval, notice or filing under, any
Ascendant Contracts (as defined in Section 3.1(a)).
Neither Ascendant nor any of its subsidiaries owns any real property.
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3.5. OWNERSHIP OF ASCENDANT.
(a) All outstanding partnership interests of Ascendant have been duly
authorized and validly issued, and are fully paid, non-assessable and free of
preemptive rights. The ownership of Ascendant and the General Partner is as set
forth in SCHEDULE 3.5.
(b) Except as described in subsection (a) above, as of the date
hereof there are no outstanding:
(i) equity interests in Ascendant or its subsidiaries;
(ii) securities of Ascendant or its subsidiaries convertible into
or exchangeable for equity interests in Ascendant or its subsidiaries; or
(iii) options, warrants or other rights to acquire from Ascendant
or its subsidiaries, equity interests in, or securities convertible into or
exchangeable for equity interests in, Ascendant or its subsidiaries. There are
no outstanding obligations of Ascendant or its subsidiaries to repurchase,
redeem or otherwise acquire any of the outstanding equity interests therein.
3.6. INVESTMENTS.
(a) SCHEDULE 3.6 sets forth a list of all Investments and their
respective jurisdictions of incorporation or organization and includes a list,
by Fund, of each underlying fund in which any of the Funds has invested and the
aggregate amount invested by such Fund in such underlying fund. All of the
Investments are owned by Ascendant, directly or indirectly, as set forth in
SCHEDULE 3.6, free and clear of any liens and free of any other limitation or
restriction, including any limitation or restriction on the right to vote, sell
or otherwise dispose of such capital stock or other ownership interest (other
than any of the foregoing that may exist under the Securities Act or any state
securities laws).
(b) All ownership interests in each Investment have been duly
authorized and validly issued, and are fully paid, non-assessable and free of
preemptive rights.
(c) Except as set forth in SCHEDULE 3.6, none of the Investments of
Ascendant owns or controls directly or indirectly, or has any direct or indirect
equity participation in, any corporation, partnership, limited liability
company, joint venture or other entity.
3.7. ASCENDANT SEC DOCUMENTS. Each of Ascendant and its Investments has
filed all forms, reports and documents with the SEC required to be filed by it
prior to the date of this Agreement (together with the amendments and
supplements to such filings filed prior to the date of this Agreement, the
"ASCENDANT SEC DOCUMENTS"). Each Ascendant SEC Document, as of its filing date
(or if amended, as of the date of its last amendment) complied as to form in all
material respects with the applicable requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT"), the Exchange Act, the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT") and the Advisers
Act, as the case may be. No Ascendant SEC Document, as of its filing date (or as
of the date it became effective if filed under the Securities Act, or if amended
or supplemented, as of the date of its last amendment or supplement), contained
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any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. No subsidiary of Ascendant is required to file any forms, reports,
or other documents pursuant to the Securities Act or the Exchange Act.
3.8. FINANCIAL STATEMENTS; LIABILITIES.
(a) Each of the consolidated balance sheets of each of the Funds
included in the Ascendant SEC Documents fairly presents in all material respects
the consolidated financial position of such Fund and its subsidiaries as of the
respective date thereof, and the other related consolidated financial statements
(including the notes thereto) included therein fairly present in all material
respects the results of operations and cash flows of such Fund and its
subsidiaries for the respective periods or as of the respective dates set forth
therein (collectively, the "FUND FINANCIAL STATEMENTS"). As of the respective
filing date for the applicable Ascendant SEC Document in which it was included,
each of the Fund Financial Statements (including the notes thereto) complied in
all material respects with the then applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, and was
prepared in accordance with accounting principles generally accepted in the
United States ("GAAP") applied on a consistent basis during the periods or as of
the respective dates involved, except as otherwise noted therein and subject, in
the case of unaudited interim financial statements, to normal year-end
adjustments.
(b) Attached hereto as EXHIBIT 3.8(b) are the unaudited consolidated
balance sheet and statements of operations and retained earnings and cash flow
of Ascendant as of and for the year ended December 31, 2004 and the unaudited
consolidated balance sheet and statements of operations and retained earnings
and cash flow of Ascendant of and for the six months ended June 30, 2005
(collectively, the "ASCENDANT FINANCIAL STATEMENTS"). The Ascendant Financial
Statements are complete and correct in all material respects and have been
prepared in accordance with GAAP on a consistent basis throughout the periods
indicated. The Ascendant Financial Statements fairly present the financial
condition and results of operations of Ascendant as of the dates and for the
periods indicated therein, subject to normal year end adjustments which are
neither individually nor in the aggregate expected to be material. Except as
reflected in the Ascendant Financial Statements or disclosed on SCHEDULE 3.9,
Ascendant has no material debts, liabilities, guarantees or other obligations,
whether accrued, absolute, contingent or otherwise.
(c) Ascendant has delivered to NCEH an estimated balance sheet as of
September 30, 2005, which represents Ascendant's reasonable best estimate of the
expected assets and liabilities of Ascendant as of such date.
3.9. ABSENCE OF CERTAIN CHANGES. (a) Since December 31, 2004, Ascendant and
each of its subsidiaries has conducted its business in the ordinary course
consistent with past practice and, except as disclosed on SCHEDULE 3.9, there
has not been:
(i) any change in the assets, liabilities, condition (financial or
otherwise), affairs, earnings, business, operations, or prospects of Ascendant
from that reflected in the latest balance sheet included in the Ascendant SEC
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Documents, except for changes in the ordinary course of business which have not
been, either individually or in the aggregate, materially adverse;
(ii) any change in the liabilities or obligations of Ascendant,
contingent or otherwise, whether due or to become due, whether by way of
guaranty, endorsement, indemnity, warranty, or otherwise, except liabilities
incurred in the ordinary course of business, none of which materially and
adversely affects the business, prospects, condition, affairs, properties or
assets of Ascendant;
(iii) any change in the accounting methods or practices followed
by Ascendant;
(iv) any issuance of equity interests in Ascendant or options,
warrants, or rights or agreements or commitments to purchase or issue any such
interests or grant such options, warrants or rights, except for those issuances
contemplated or permitted by this Agreement or the Principals Agreement; or
(v) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, operation or
business of Ascendant;
(vi) any waiver by Ascendant of a valuable right or of a material
debt owed to it;
(vii) any loans made by Ascendant to any of its partners or
employees or members or employees of the General Partner other than advances of
expenses made in the ordinary course of business;
(viii) any sale, transfer, or lease of any of Ascendant's assets
except in the ordinary course of business or any mortgage or pledge of or lien
imposed upon any of Ascendant's assets;
(ix) to the best of Ascendant's knowledge, any other event or
condition of any character that has or could reasonably be expected to have a
material adverse effect on the business, prospects, condition, affairs,
operations, properties or assets of Ascendant; or
(x) any agreement by Ascendant to do or enter into any of the
foregoing.
3.10. LITIGATION AND LEGAL COMPLIANCE.
(a) As of the date hereof, each of Ascendant and the Investments has
no notice of any claims, actions, suits, proceedings or investigations pending
or threatened by or against Ascendant or any of its subsidiaries. Neither
Ascendant nor any of its Investments is subject to any outstanding judgment,
injunction, order or decree of any Governmental Entity, or any judicial or
administrative actions, proceedings or investigations pending, or threatened,
which question the validity of this Agreement or any action taken or to be taken
by Ascendant in connection with this Agreement.
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(b) Ascendant and its Investments are in compliance with all federal,
state and local laws, statutes, rules, regulations, ordinances, permits, orders
or writs, including without limitation the Advisers Act and the Investment
Company Act and all rules promulgated thereunder.
(c) All disclosures required to be made to investors in any Investment
have been made and such disclosures did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(d) Each of Ascendant and its Investments has all permits, licenses,
approvals, authorizations of, and registrations with and under all laws, and
from all Governmental Entities required for Ascendant and its subsidiaries to
carry on their respective businesses as currently conducted, except where the
failure to have any such permit, license, approval, authorization or
registration would not have a material adverse affect on Ascendant or such
Investment.
3.11. CONTRACTS.
(a) SCHEDULE 3.11(a) contains a description of each of the following
to which Ascendant or any of its Investments is a party (i) that requires active
performance by Ascendant as of the date hereof or (ii) that is otherwise
material to Ascendant, whether active or not (the "ASCENDANT CONTRACTS"):
(i) all agreements, contracts, leases or binding commitments;
(ii) any indenture, mortgage, promissory note, loan agreement or
other agreement or commitment for the borrowing of money by Ascendant or any of
its subsidiaries;
(iii) any lease, sublease or other agreement pursuant to which it
is a lessee of or holds or operates any real or personal property owned by any
third party;
(iv) any option or other executory agreement or other agreement
with remaining obligations thereunder to purchase or acquire any interest in
assets or property;
(v) any option or other executory agreement or other agreement
with remaining obligations thereunder to sell or dispose of any interest in
assets or property other than equity option agreements with employees,
independent contractors and directors pursuant to Ascendant's equity option
plans;
(vi) any contract or agreement creating a joint venture or similar
arrangement by which any assets, properties, rights, or business of Ascendant or
any Investment is materially affected;
(vii) any guaranty, keep well, make whole or similar agreement of
or with respect to the obligations of third parties;
(viii) any agreement which restricts Ascendant or any Investment
from doing business anywhere in the world or limits the business in which it may
engage;
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(ix) any agreement or arrangement under which Ascendant or any
Investment agrees to indemnify any person or to share tax liability of any
person;
(x) any license of material Ascendant Intellectual Property (as
defined in Section 3.13) (including use of the name of Ascendant or any similar
name) of or by Ascendant other than in the ordinary course of business;
(xi) any contracts for insurance;
(xii) any contract or agreement under which Ascendant has the
obligation to issue or sell any security; and
(xiii) the employment agreements between Ascendant and each of the
Principals (the "EMPLOYMENT AGREEMENTS").
(b) Ascendant has delivered to NCEH true and complete copies of each
of the Employment Agreements.
(c) Each Ascendant Contract is a valid, binding and enforceable
obligation of Ascendant and, to Ascendant's knowledge, of the other party or
parties thereto (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors'
rights, or by general equity principles, including principles of commercial
reasonableness, good faith and fair dealing), and each Ascendant Contract is in
full force and effect.
(d) Neither Ascendant, any Investment nor, to Ascendant's knowledge,
any other party thereto, is in breach of or default under any term of any
Ascendant Contract or has repudiated any term of any Ascendant Contract except
as set forth in SCHEDULE 3.11(a).
(e) Ascendant has not received any written notice of termination or
cancellation with respect to any Ascendant Contract, and no other party to a
Ascendant Contract plans to terminate or cancel any such agreement.
3.12. BUDGET. The Budget was prepared using the reasonable best efforts of
Ascendant and represents Ascendant's reasonable best estimate of its expected
revenues and expenses for the periods and expected cash balances at the times
covered thereby.
3.13. INTELLECTUAL PROPERTY. Each of Ascendant and its Investments owns all
right, title and interest in and to its trademarks, service marks, trade names,
copyrights, patents and other intellectual property (collectively, "ASCENDANT
INTELLECTUAL PROPERTY") including any registrations therefor and the goodwill
associated therewith and considers same adequate to carry on the business of
Ascendant or such Investment.
3.14. TITLE TO PROPERTY AND ASSETS. Ascendant has good and marketable title
to its property and assets free and clear of all mortgages, liens, loans, and
encumbrances, except such encumbrances and liens which arise in the ordinary
course of business and do not materially impair Ascendant's ownership or use of
such property or assets. With respect to the property and assets it leases,
Ascendant is in compliance with such leases and, to its knowledge, holds a valid
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leasehold interest free of any liens, claims, or encumbrances. All of
Ascendant's properties and assets are, in all material respects, in good
operating and usable condition, subject to normal wear and tear.
3.15. TAX MATTERS. Ascendant (i) has timely filed all tax returns that are
required to have been filed by it with all appropriate Governmental Entities
(and all such returns are complete and fairly reflect its operations for tax
purposes in all material respects); and (ii) has timely paid all taxes owed or
assessments by it (other than taxes the validity of which are being contested in
good faith by appropriate proceedings). The assessment of any additional
material taxes for periods for which returns have been filed is not expected to
exceed the recorded liability therefor and, to Ascendant's knowledge, there are
no material unresolved questions or claims concerning Ascendant's tax liability.
To the best of Ascendant's knowledge and belief, Ascendant's tax returns have
not been reviewed or audited by any taxing authority. There is no pending
dispute with any taxing authority relating to any of said returns which, if
determined adversely to Ascendant, would result in the assertion by any taxing
authority of any valid deficiency in a material amount for taxes.
3.16. DISCLOSURE. Ascendant has provided NCEH with all information that
NCEH has requested for deciding whether to purchase the Revenue Interest and all
information that Ascendant believes is material and reasonably necessary to
enable NCEH to make such decision. Neither this Agreement, nor any other
statements or certificates made or delivered in connection herewith, contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements herein or therein not misleading in light of
the circumstances in which they were made.
Section 4. REPRESENTATIONS AND WARRANTIES OF NCEH.
NCEH represents and warrants to Ascendant that:
4.1. CORPORATE EXISTENCE AND POWER. NCEH is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to own, lease
and operate its properties and assets and to carry on its business as presently
being conducted.
4.2. CORPORATE AUTHORIZATION; APPROVALS. The execution, delivery and
performance by NCEH of this Agreement and the consummation by NCEH of the
transactions contemplated hereby are within NCEH's corporate powers and have
been duly authorized by all necessary corporate action. Assuming that this
Agreement constitutes the valid and binding obligation of Ascendant, this
Agreement constitutes a valid and binding agreement of NCEH, enforceable in
accordance with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors'
rights, or by general equity principles, including principles of commercial
reasonableness, good faith and fair dealing).
4.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance by
NCEH of this Agreement and the consummation by NCEH of the transactions
contemplated hereby do not require any filing or registration with, notification
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to, or authorization, consent or approval of any Governmental Entity, other than
compliance with any applicable requirements of the Exchange Act following the
Closing.
4.4. PURCHASE FOR OWN ACCOUNT. The Revenue Interest acquired by NCEH
hereunder will be acquired for investment for NCEH's own account, not as a
nominee or agent, and not with a view to the public resale or distribution
thereof within the meaning of the Securities Act, and NCEH has no present
intention of selling, granting any participation in, or otherwise distributing
the same.
4.5. DISCLOSURE OF INFORMATION. Without in any way limiting NCEH's rights
and remedies under the Agreement, NCEH acknowledges that it has received or has
had full access to all the information it considers necessary or appropriate to
make an informed investment decision with respect to the Revenue Interest.
Section 5. COVENANTS.
5.1. PAYMENTS. Ascendant shall pay to NCEH all amounts payable in respect
of the Revenue Interest from and after the Effective Date as promptly as
practicable and in any event no later than thirty (30) days following the end of
any calendar quarter and all amounts payable with respect to the provision by
NCEH of marketing services in accordance with any agreement of the parties
concerning the provision of such services.
5.2. REFUND. If (a) Ascendant materially breaches any of its obligations
under this Agreement (with any breach of Section 5.9 being considered a material
breach) and such breach is not cured within forty-five (45) days after notice of
such breach is given to Ascendant or (b) Ascendant ceases normal business
operations or engages in any effort to close the Funds or (c) a petition in
bankruptcy is filed by or against Ascendant, then in any such case Ascendant
shall refund to NCEH an amount equal to all payments theretofore made on account
of the Purchase Price not later than thirty (30) days after NCEH gives Ascendant
a written notice requesting such refund and Ascendant shall have no further
obligation to make payments in respect of the Purchase Price thereafter. Such
refund shall not reduce the Revenue Interest acquired by NCEH hereunder.
5.3. FINANCIAL STATEMENTS. Ascendant shall furnish or cause to be furnished
to NCEH:
(a) as soon as reasonably possible, and in any event within 120 days
after the end of each fiscal year of Ascendant, the unaudited consolidated
balance sheet of Ascendant as at the end of such fiscal year, and unaudited
consolidated statements of operations and retained earnings and cash flow of
Ascendant for such fiscal year, all in reasonable detail, and prepared in
accordance with GAAP;
(b) as soon as reasonably possible, and in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal year of
Ascendant, the unaudited consolidated balance sheet and statements of operations
and retained earnings and cash flow of Ascendant for such quarter, all in
reasonable detail, prepared in accordance with GAAP, and certified to be
complete and correct in all material respects (subject to year-end adjustments)
by the General Partner of Ascendant;
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(c) as soon as reasonably possible, and in any event within 30 days
after the end of each calendar month, a balance sheet, profit and loss
statement, cash flow statement and operating report relating to the operations
of Ascendant for such calendar month;
(d) as soon as reasonably possible, and in any event within 120 days
after the end of each fiscal year of each Investment, the audited consolidated
balance sheet of such Investment as at the end of such fiscal year, and audited
consolidated statements of operations and retained earnings and cash flow of
such Investment for such fiscal year, all in reasonable detail, and prepared in
accordance with GAAP, and accompanied by the unqualified report thereon of a
nationally recognized independent certified public accountant firm reasonably
satisfactory to NCEH;
(e) as soon as reasonably possible, and in any event within 45 days
after the end of the second fiscal quarter of each fiscal year of each
Investment, the unaudited consolidated balance sheet and statements of
operations and retained earnings and cash flow of such Investment for the six
months of such fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and certified to be complete and correct in all material respects
(subject to year-end adjustments) by the General Partner of Ascendant or the
chief executive officer of such Investment;
(f) as soon as reasonably possible, and in any event within 30 days
after the end of each calendar month, a balance sheet, profit and loss
statement, cash flow statement and operating report relating to the operations
of each Investment for such calendar month;
(g) promptly after the preparation thereof, and in any case not later
than 30 days prior to the beginning of each fiscal year of Ascendant,
Ascendant's budget, business plan and financial forecasts, including a projected
balance sheet, profit and loss statement and cash flow statement, for the
forthcoming year, and any other similar reports customarily prepared by the
management of Ascendant for internal use;
(h) promptly after receipt, all reports delivered to Ascendant by its
accountants;
(i) promptly after the commencement or threatened commencement
thereof, notice of all actions, suits, investigations, and proceedings before
any court or governmental department, arbitration panel, commission, board,
bureau, agency or instrumentality, domestic or foreign, materially affecting
Ascendant or any of its subsidiaries other than ordinary and routine litigation
covered under the limits of existing insurance policies;
(j) promptly after the sending or filing thereof, copies of all
reports that Ascendant or any of its Investments sends to its equity holders or
investors, and copies of all regular, periodic and special reports, and all
registration statements, if any, which Ascendant may file with the Securities
and Exchange Commission or any other Governmental Entity;
(k) promptly, copies of minutes of meetings of the Board of Directors,
Board of Managers or comparable governing body of any the Investments and of any
press releases issued by Ascendant or any of the Investments;
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(l) promptly, copies of all amendments to any of the Organizational
Documents of Ascendant or any of its Investments; and
(m) such other information regarding the business, affairs and
condition of Ascendant or its Investments as NCEH may from time to time
reasonably request.
5.4. ACCESS TO INFORMATION. At any reasonable time and from time to time,
upon reasonable notice, Ascendant shall permit NCEH, and/or any agent or
representative thereof, to examine, inspect, audit and make copies of and
abstracts from the books and records of, and visit and inspect the properties
and assets of, Ascendant and to discuss the business affairs, marketing,
finances and accounts of Ascendant with any of its partners, officers and
directors. Ascendant shall furnish to NCEH, promptly upon request, copies of
such financial, operating and marketing data and other information as reasonably
requested by NCEH. Upon three business days' prior notice to Ascendant, NCEH
shall have the right to confer in its discretion with the independent certified
public accountants of Ascendant at any time during normal business hours upon
any matter involving the financial condition of Ascendant or any Investment and
such accountants are hereby irrevocably authorized to fully discuss with and
disclose to NCEH all such matters. NCEH, by its exercise of the rights conferred
by this Section 5.4, agrees to maintain the confidentiality of any information
received by it pursuant to this Section 5.4, until such information becomes
public or is otherwise no longer confidential, unless such information becomes
public through action or omission of NCEH, provided, however, that NCEH may
disclose any information received by it pursuant to this Section 5.4 as required
by law and share such information with its partners, if any, and with its legal,
accounting, financial and other advisors and representatives.
5.5. LEGAL EXISTENCE, COMPLIANCE, ETC.
(a) Ascendant shall maintain its existence as a limited partnership
duly organized, validly existing and in good standing under the laws of the
state of its organization.
(b) Ascendant shall conduct its business in compliance in all material
respects with all permits and licenses issued by, and all statutes, rules,
regulations and orders of, and all restrictions imposed by, all governmental
authorities, domestic or foreign, federal or state, applicable to the conduct of
its business and the ownership of its property (including, without limitation,
applicable statutes, rules, regulations, orders and restrictions relating to the
rendering of investment advice and the issuance and sale of securities).
(c) Ascendant shall conduct its business in compliance in all material
respects with all licenses, agreements and contracts to which it is a party.
(d) Ascendant shall keep adequate records and books of account, in
which complete entries will be made in accordance with GAAP consistently
applied, reflecting all of its financial transactions.
(e) Ascendant shall maintain, keep, and preserve all of its material
properties (tangible and intangible) necessary in the proper conduct of its
business in good working order and condition, ordinary wear and tear expected.
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(f) Ascendant shall maintain, or cause to be maintained, in full force
and effect, with financially sound and reputable insurers, workers'
compensation, fire, casualty, and liability insurance, with extended coverage,
and other insurance all in such amounts and covering such risks as shall be
reasonable and prudent in view of the business and operations of Ascendant and
in any event no less extensive than is customarily maintained by companies of
established reputation engaged in the same or similar businesses.
5.6. MARKETING SERVICES.
(a) NCEH shall provide marketing services to Ascendant by consulting
and reviewing with Ascendant its marketing materials, distribution channels and
other related matters, on such terms as NCEH and Ascendant may agree.
(b) To the extent permitted by applicable law, for any account
identified in writing by NCEH and accepted by Ascendant, Ascendant agrees to pay
to or at the direction of NCEH a fee of 20% of all fees received by Ascendant
with respect to such account for as long as such account is invested with
Ascendant or with any Investment, PROVIDED that an account that has not yielded
an investment with Ascendant or with an Investment for eighteen months after
being identified to Ascendant by NCEH must be accepted again in writing by
Ascendant to remain subject to this provision. NCEH shall be entitled to assign
its rights under this Section 5.6(b) with the prior consent of Ascendant which
consent shall not be unreasonably withheld, delayed or conditioned.
(c) Ascendant shall be responsible for assuring that, and shall cause,
all offering and marketing materials to fully disclose, to the extent required
by applicable law, the rights and obligations of the parties to this Agreement
and any marketing arrangements between them.
5.7. REPURCHASE OF REVENUE INTEREST.
(a) If for any calendar quarter starting after the second anniversary
of the Effective Date the Applicable Percentage of the Revenue Interest is equal
to 30% (a "QUALIFYING QUARTER"), Ascendant shall have the right to repurchase
from NCEH a portion of the Revenue Interest so that, after giving effect to such
repurchase, NCEH shall hold the Residual Revenue Interest (as defined below) for
a repurchase price that equals the sum of (x) the Purchase Price actually paid
to Ascendant plus (y) a 25% annualized return on each installment of the
Purchase Price so paid, compounded annually, from the date of payment of such
installment to the date of payment of the repurchase price. For purposes of this
Agreement the term "RESIDUAL REVENUE INTEREST" shall mean a Revenue Interest
that has an Applicable Percentage of: (i) 10% for the period from the date on
which the repurchase resulting in NCEH holding the Residual Interest becomes
effective (the "REPURCHASE EFFECTIVE DATE") until the day before the first
anniversary of the Repurchase Effective Date; (ii) 9% for the period from the
first anniversary of the Repurchase Effective Date to the day before the second
anniversary of the Repurchase Effective Date; (iii) 8% for the period from the
second anniversary of the Repurchase Effective Date to the day before the third
anniversary of the Repurchase Effective Date; (iv) 7% for the period from the
third anniversary of the Repurchase Effective Date to the day before the fourth
anniversary of the Repurchase Effective Date; (v) 6% for the period from the
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fourth anniversary of the Repurchase Effective Date to the day before the fifth
anniversary of the Repurchase Effective Date; and (vi) 5% thereafter.
Ascendant's right to repurchase a portion of the Revenue Interest under this
Section 5.7(a) shall be exercisable by giving NCEH written notice of exercise
not later than sixty (60) days after the end of any Qualifying Quarter. The
repurchase price shall be paid by wire transfer to an account designated by
NCEH, or in the absence of such designation by certified check made payable to
NCEH, not less than thirty (30) nor more than sixty (60) days after the notice
of exercise is given and upon such payment the repurchase shall be effective.
(b) In the event of an NCEH Event of Default that is not cured within
thirty (30) days after Ascendant gives written notice thereof to NCEH, Ascendant
shall have the right to repurchase the entire Revenue Interest for a repurchase
price that equals the sum of (i) the aggregate installments of Purchase Price
actually paid to Ascendant plus (ii) a 10% annualized return on the "unpaid
balance" from time to time of each installment of Purchase Price, compounded
annually, from the date of payment of such installment by NCEH to the date such
installment is deemed "repaid" in full as provided herein. Ascendant's right to
repurchase the Revenue Interest shall be exercisable by giving NCEH written
notice of exercise not later than fifteen (15) days after the end of the thirty
day period referred to above. The repurchase under this Section 5.7(b) shall be
effective upon payment in full of the repurchase price. Prior to the
effectiveness of the repurchase, Ascendant shall continue to make payments to
NCEH in respect of the Revenue Interest as provided by this Agreement and such
payments shall be applied to, and shall be deemed to be payments on account of,
the repurchase price. Ascendant shall pay any unpaid balance of the repurchase
price on the third anniversary of the date that the notice of exercise is given
under this Section 5.7(b). Payments on account of the repurchase price shall be
applied in the following order: (1) FIRST, to the return on installments of the
Purchase Price described in clause (ii) above in the inverse order in which such
installments were paid by NCEH and (2) SECOND, to the amounts described in
clause (i) above. For purposes of calculating the return on installments of
Purchase Price under clause (ii) above, each payment on account of the
repurchase price that is applied as described in clause (2) above shall be
deemed to "repay" the installments of Purchase Price (to the extent not
previously deemed "repaid" under this provision) in the inverse order in which
such installments were paid by NCEH and the "unpaid balance" of an installment
shall be deemed to be the amount of such installment paid by NCEH reduced by the
amount by which such installment is deemed "repaid" under this provision. The
rights granted to Ascendant under this Section 5.7(b) shall constitute the sole
and exclusive remedy of Ascendant in the event of an NCEH Event of Default.
(c) Upon Ascendant's giving a notice exercising its right to
repurchase all or a portion of the Revenue Interest in accordance with Section
5.7(b), all obligations of NCEH to pay any amount in respect of any installment
of the Purchase Price (whether or not then due) shall cease and NCEH shall have
no further obligation to make any payment of Purchase Price thereafter.
Notwithstanding the giving of a notice under Section 5.7(a) or 5.7(b), NCEH
shall continue to be entitled to receive all payments to which it is otherwise
entitled under this Agreement, with respect to the entire Revenue Interest held
by it immediately prior to the giving of such notice, that accrue prior to the
date that the repurchase of the Revenue Interest or portion thereof with respect
to which the notice is given becomes effective in accordance with Section 5.7(a)
or 5.7(b), as the case may be.
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5.8. NONCOMPETITION BY NCEH. NCEH shall not acquire more than a 50%
ownership interest in or a right to receive more than 50% of the income of the
management of any fund of funds that invests 30% or more of its assets under
management in any one or more of the underlying funds in which the Funds are
then invested. Ascendant shall keep NCEH advised, promptly after moneys are
invested, of the identities of the underlying funds in which any of the Funds
are invested.
5.9. BUDGET. Ascendant shall be in conformance with the cash, debt and
accrued expense levels set forth in the Budget at the end of every quarter,
adjusting for payments required to be made by and to NCEH, provided that the
debt and accrued expense levels may be higher than set forth in the Budget if
such amounts are reasonably necessary and incurred in the ordinary course of
business and all items of expense and revenue are booked on a timely and
appropriate basis.
5.10. INVESTMENT ADVISORY COMMITTEE. Ascendant shall maintain the
Investment Advisory Committee and hold regular meetings thereof no less
frequently than four times per year.
5.11. NCEH ADVISORY COMMITTEE. NCEH shall create an Advisory Committee that
Xxxx Xxxxxxx shall be a member of. Such Advisory Committee shall advise NCEH
with regard to strategies and other issues pertaining to the acquisition and
management of funds of funds that invest in hedge funds.
Section 6. INDEMNITY.
(a) Ascendant shall indemnify, defend and hold harmless NCEH and its
shareholders, directors, officers, employees, agents, affiliates and controlling
parties (each, an "NCEH INDEMNIFIED PARTY") from and against any and all
liability, loss or damage, together with all reasonable costs and expenses
related thereto (including legal and accounting fees and expenses), arising from
the untruth, inaccuracy or breach of any such representations, warranties,
covenants or agreements of Ascendant contained in this Agreement or the
assertion of any claim relating to the foregoing (each an "NCEH CLAIM");
PROVIDED, HOWEVER, that no indemnification shall be required hereunder for the
gross negligence or willful misconduct of any NCEH Indemnified Party. In case
any NCEH Claim is brought against an NCEH Indemnified Party, Ascendant will be
entitled to participate in and assume the defense thereof with counsel
reasonably satisfactory to such NCEH Indemnified Party, and after notice from
Ascendant to such NCEH Indemnified Party of its election to assume the defense
thereof, Ascendant shall be responsible for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof,
provided that if any NCEH Indemnified Party shall have reasonably concluded that
there may be one or more legal defenses available to such NCEH Indemnified Party
that conflict in any material respect with those available to Ascendant, or that
such NCEH Claim involves or could have an effect upon matters beyond the scope
of the indemnity agreement provided in this Section 6(a), Ascendant shall not
have the right to assume the defense of such action on behalf of such NCEH
Indemnified Party and Ascendant shall reimburse such NCEH Indemnified Party and
any person or entity controlling such NCEH Indemnified Party for that portion of
the reasonable fees and expenses of any counsel retained by the NCEH Indemnified
Party that are reasonably related to the matters covered by the indemnity
16
agreement provided in this Section 6(a). Ascendant shall not make any settlement
of any claim indemnified against under this Section 6(b) without the written
consent of the NCEH Indemnified Party or Parties, which consent shall not be
unreasonably withheld.
(b) NCEH shall indemnify, defend and hold harmless Ascendant and its
shareholders, directors, officers, employees, agents, affiliates and controlling
parties (each, an "ASCENDANT INDEMNIFIED PARTY") from and against any and all
liability, loss or damage, together with all reasonable costs and expenses
related thereto (including legal and accounting fees and expenses), arising from
the untruth, inaccuracy or breach of any such representations, warranties,
covenants or agreements of NCEH contained in this Agreement or the assertion of
any claim relating to the foregoing (each an "ASCENDANT CLAIM"); PROVIDED,
HOWEVER, that no indemnification shall be required hereunder for the gross
negligence or willful misconduct of any Ascendant Indemnified Party. In case any
Ascendant Claim is brought against an Ascendant Indemnified Party, NCEH will be
entitled to participate in and assume the defense thereof with counsel
reasonably satisfactory to such Ascendant Indemnified Party, and after notice
from NCEH to such Ascendant Indemnified Party of its election to assume the
defense thereof, NCEH shall be responsible for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof,
provided that if any Ascendant Indemnified Party shall have reasonably concluded
that there may be one or more legal defenses available to such Ascendant
Indemnified Party that conflict in any material respect with those available to
NCEH, or that such Ascendant Claim involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section 6(b), NCEH
shall not have the right to assume the defense of such action on behalf of such
Ascendant Indemnified Party and NCEH shall reimburse such Ascendant Indemnified
Party and any person or entity controlling such Ascendant Indemnified Party for
that portion of the reasonable fees and expenses of any counsel retained by the
Ascendant Indemnified Party that are reasonably related to the matters covered
by the indemnity agreement provided in this Section 6(b). NCEH shall not make
any settlement of any claim indemnified against under this Section 6(b) without
the written consent of the Ascendant Indemnified Party or Parties, which consent
shall not be unreasonably withheld.
Section 7. MISCELLANEOUS.
7.1. SURVIVAL OF REPRESENTATIONS. The representations and warranties and
covenants contained in this Agreement or in any certificate, instrument or other
writing delivered pursuant to this Agreement will survive this Agreement.
7.2. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the rights,
interests or obligations provided by this Agreement will be assigned by any of
the parties (whether by operation of law or otherwise) without the prior written
consent of the other parties except that NCEH shall be entitled to assign its
rights and obligations hereunder to any person or entity controlling, controlled
by or under common control with NCEH without the consent of any other party
hereto. Subject to the preceding sentence, this Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
7.3. AMENDMENT. This Agreement may be amended by the execution and delivery
of a written instrument by or on behalf of Ascendant and NCEH.
17
7.4. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
7.5. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all such
counterparts taken together will constitute one and the same Agreement, and a
photostatic or facsimile copy of an executed counterpart hereof shall be given
the same effect as the original.
7.6. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and will not constitute a part of this Agreement.
7.7. NOTICES. Any notice, request, instruction or other document to be
given hereunder will be in writing and delivered personally or sent by
registered or certified mail (postage prepaid) or by facsimile, according to the
instructions set forth below. Such notices will be deemed given: at the time
delivered by hand, if personally delivered; three business days after being sent
by registered or certified mail; and at the time when receipt is confirmed by
the receiving facsimile machine if sent by facsimile:
if to NCEH, to:
New Century Equity Holdings Corp.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: 2140661-7475
if to Ascendant, to:
ACP Investments LP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: 000 000-0000
or to such other address or to the attention of such other party that the
recipient party has specified by prior written notice to the sending party in
accordance with the preceding.
7.8. ENTIRE AGREEMENT. This Agreement, and the other documents referred to
herein collectively constitute the entire agreement among the parties and
supersede any prior and contemporaneous understandings, agreements or
representations by or among the parties, written or oral that may have related
in any way to the subject matter hereof.
7.9. CONSTRUCTION. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent and no rule of
strict construction will be applied against any party. The use of the word
"including" in this Agreement means "including without limitation" and is
18
intended by the parties to be by way of example rather than limitation.
References and definitions in the plural shall refer to the singular and vice
versa as the context may require and references expressed in any gender shall
refer to all genders as the context requires.
7.10. CONSENT TO JURISDICTION. EACH OF THE PARTIES TO THIS AGREEMENT
CONSENTS TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN THE STATE OF TEXAS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT, AND AGREES NOT TO
BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN
ANY OTHER COURT. EACH OF THE PARTIES TO THIS AGREEMENT AGREES NOT TO ASSERT IN
ANY ACTION OR PROCEEDING ARISING OUT OF RELATING TO THIS AGREEMENT THAT THE
VENUE IS IMPROPER, AND WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY
OR OTHER SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT
THERETO.
7.11. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF
THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHT TO, AND AGREES NOT TO
ELECT, A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS AGREEMENT.
7.12. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY
LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF DELAWARE TO BE APPLIED.
7.13. PUBLICITY. Ascendant may publicize this transaction promptly after
Closing by publishing a press release mutually acceptable to the parties. NCEH
shall have the right to make such disclosures concerning this Agreement and the
Principals Agreement as it determines in its sole discretion to be appropriate
or necessary to comply with applicable law.
7.14. SCHEDULES. The representations and warranties of Ascendant and NCEH
set forth in this Agreement are made and given subject to the disclosures
contained in the Schedules.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ACP INVESTMENTS LP (D/B/A ASCENDANT CAPITAL PARTNERS)
By Ascendant Holdings, LLC, its General Partner
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxx, Member
NEW CENTURY EQUITY HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx, Chief Executive Officer
