Exhibit 10.1
X.X. Xxxxx Securities, Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
September 7, 2006
One IP Voice, Inc.
00 Xxxxxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Xxxx-Xxxx Xxxxxxxxxxx
Dear Xxxx-Xxxx:
This letter agreement ("Agreement") confirms the terms and conditions pursuant
to which X.X. Xxxxx Securities, Inc. ("Xxxxx") will act as financial advisor to
One IP Voice, Inc. (variously hereinafter "OIPV," the "Company" or "you"), in
connection with the proposed offering, issuance and sale by OIPV ("Offering")
of debt or equity securities ("Securities") or some combination thereof in the
aggregate amount ranging from $1.0MM to $3.0MM (the foregoing referred to
hereinafter as the "Transaction").
1. Engagement of Xxxxx. The Company hereby engages Xxxxx on an
exclusive basis (exclusive only as to the Transaction) to provide
the Company with such capital markets and financial advisory
services in connection with the structuring of the Transaction as
they may reasonably request, and as is customary, including acting
as sole placement agent on a best efforts basis for the Offering.
The Company acknowledges and agrees that the Xxxxx engagement
hereunder is not an agreement by Xxxxx or any of its affiliates to
underwrite, place or purchase any securities or otherwise provide
any financing. To the extent that affiliates of Xxxxx agree to
participate in the Offering, such commitment or participation shall
be pursuant to the terms of a separate written agreement executed
by the appropriate Xxxxx affiliate.
2. Compensation; Retainer. As compensation for Xxxxx'x services
hereunder, the Company shall pay to Xxxxx a success fee ("Success
Fee") in connection with the Transaction. The Success Fee shall be
equal to: (i) cash in an amount equal to 8% of any and all of the
gross proceeds of the Transaction (exclusive of cash raised from
Xxxxx affiliates, if any); and (ii) a five-year warrant (a
"Warrant") to purchase such number of securities of the Company
sold in the Transaction (rounded up to the nearest whole share and
subject to adjustment in connection with any stock split,
recapitalization or the like) as is equal to 10% of any and all of
the gross proceeds of the Transaction (exclusive of cash raised
from Xxxxx affiliates, if any) divided by the price per share paid
by the investors in the Transaction, with an exercise price per
share equal to the price per share paid by the investors in the
Transaction. The Success Fee (including any Warrants) is due Xxxxx
upon the Closing.
3. Expenses. In addition to any other amounts which may be due to
Xxxxx hereunder, the Company agrees to reimburse Xxxxx for all
reasonable expenses (including, without limitation, reasonable
fees, disbursements and other charges of legal counsel (Transaction
counsel and NASD counsel) and other experts or
consultants)("Expenses") incurred by Xxxxx in connection with this
Agreement and any of the transactions contemplated hereby, whether
or not any Securities are offered or sold. The Company agrees to
pay Xxxxx any and all Expenses within ten days after submission by
Xxxxx of itemized
monthly bills to the Company. Xxxxx shall not incur more than
$10,000 in expenses (excluding legal fees) without the prior
agreement of the Company. In addition to this Agreement, the
Company is entering into a separate indemnity agreement ("Indemnity
Agreement") in favor of Xxxxx and certain affiliates, dated as of
the date of this Agreement.
4. Term and Termination. This Agreement shall commence on the date
hereof and terminate ("Termination Date") on the first to occur of
(i) the final closing of the sale of the Securities in the
Transaction or (ii) a date which shall be 30 days from the date of
a written termination notice from one party to this Agreement to
the other. Notwithstanding any termination hereunder, the Company
shall remain obligated to pay or provide to Xxxxx the amount of any
unpaid: (i) Success Fee provided for in Paragraph 2 above, (ii)
Expenses under Paragraph 3 above, and (iii) indemnity pursuant to
the terms of the Indemnity Agreement. Moreover, Xxxxx shall be
entitled to a fee calculated as provided in Paragraph 2 above, in
respect of any Securities sold by the Company within 12 months from
the Termination Date, to the extent such Securities are purchased
by any person or entity introduced to the Company during the term
of this Agreement.
5. Disclosure. In connection with its engagement hereunder, Xxxxx may
assist the Company in preparing a private placement memorandum or
other document to be used in connection with the Offering
("Offering Document"). The Company agrees to furnish Xxxxx on a
timely basis with all financial and other information
("Information") concerning the Company which Xxxxx may reasonably
request, for inclusion in the Offering Document or otherwise. The
Company represents that (i) the Information and Offering Document
will be complete and correct in all material respects and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (ii) any and all financial statements or projections
provided to Xxxxx will be prepared in good faith with a reasonable
basis for the assumptions and the conclusions reached therein and
on a basis consistent with the historical financial data.
The Company agrees that it will notify Xxxxx promptly of: (i) any
material adverse change, or development that may lead to any
material adverse change in the business, properties, operations,
financial condition or prospects of the Company; and (ii) any
statement contained in any Offering Document or in any historical
financial data provided to Xxxxx which is not accurate or which is
incomplete or misleading in any material respect. The Company
acknowledges that Xxxxx may rely, without independent verification,
upon the accuracy and completeness of the Information and the
Offering Document, and that Xxxxx does not assume any
responsibility therefore.
The Company acknowledges and agrees that Xxxxx is not and does not
hold itself out to be an advisor as to legal, tax accounting or
regulatory matters in any jurisdiction. The Company shall consult
with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and
appraisal of the risks, benefits and suitability of the
transactions contemplated by this Agreement. Xxxxx shall have no
responsibility or liability to the Company with respect thereto.
6. Massachusetts Choice of Law and Venue; Waiver of Jury Trial. All
aspects of the relationship created by this Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts (without regard to the conflicts of
law principles thereof). All actions and proceedings arising out of
or relating to this Agreement shall be heard and determined
exclusively in any Massachusetts State or federal court sitting in
the City of Boston, to whose jurisdiction, the Company hereby
irrevocably submits. The Company hereby irrevocably waives any
defense or objection to the Massachusetts forum designated above.
Each of Xxxxx and the Company waives all right to trial by jury in
any action, suit, proceeding or counterclaim (whether based on
contract, tort or otherwise) brought for services contemplated by
this Agreement.
7. Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof, and supersedes
all oral statements and prior writings with respect thereto. This
Agreement may not be amended or modified except in a writing
executed by each of the parties hereto. This Agreement may not be
assigned by the Company or Xxxxx without prior written consent of
the non-assigning party. Separate and apart from any provisions set
forth in the Indemnity Agreement, the Company agrees that Xxxxx
shall have no liability to the Company (whether direct, indirect,
in contract, tort or otherwise) arising out of or in connection
with the transactions contemplated by this Agreement except for
such losses, claims damages liabilities or expenses that may result
from the gross negligence or willful misconduct of Xxxxx.
We are pleased to accept this engagement and look forward to working with you
on this assignment. To indicate your agreement to and acceptance of the terms
and conditions of this Agreement, please sign and return to me the enclosed
duplicate copy of this letter.
Very truly yours,
X.X. Xxxxx Securities, Inc.
By: __________________________
Name: Xxxxxxxxxxx X. Xxxxx
Its: President
Accepted and agreed to as of the first date written above:
One IP Voice, Inc.
By: _____________________________
Name: Xxxx-Xxxx Xxxxxxxxxxx
Its: Chief Executive Officer
