EXHIBIT 10.8
LADENBURG XXXXXXXX
Xxxxx 8, 2002
Xx. Xxxx Xxxxx
Chief Executive Officer and President
EarthNetMedia, Inc.
000 Xxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Dear Xx. Xxxxx:
This letter agreement (this "Agreement") will confirm that Ladenburg
Xxxxxxxx & Co. Inc. ("Ladenburg") has been retained as a financial advisor to
EarthNetMedia, Inc. (the "Company") to perform such financial consulting
services as the Company may reasonably request. The term of this agreement (the
"Agreement") shall extend through April 8, 2003, provided, however, that either
the Company or Ladenburg may terminate this Agreement prior to such date and as
of the end of any month after the first six (6) months upon no less than 30
days' prior written notice.
As compensation for Ladenburg's services, the company will pay
Ladenburg a nonrefundable fee of $75,000 upon the execution of this Agreement.
The Company agrees to reimburse Ladenburg for all reasonable out-of-pocket
expenses incurred in carrying out the terms of this Agreement, including travel,
telephone, facsimile, courier, computer time charges, attorneys' fees and
disbursements. These out-of-pocket expenses will be payable from time to time
promptly upon invoicing by Ladenburg therefor.
It is contemplated that from time to time the Company may request
Ladenburg to perform investment banking services (as distinguished from
financial consulting services) in connection with matters involving the Company,
such as the private placement of securities; mergers; acquisitions;
divestitures; valuations; or corporate reorganizations. Any fees which Ladenburg
shall become entitled to receive from the Company in connection with the
performance of any such investment banking services shall be set forth in a
separate agreement between the Company and Ladenburg and shall be in addition to
the compensation provided for under this Agreement. Ladenburg, however, will
have no obligation to enter into any separate agreement, the terms and
conditions of which must be negotiated between Ladenburg and the Company.
In order to enable Ladenburg to render its services hereunder, the
Company agrees to provide to Ladenburg, among other things, all information
reasonably requested or required by Ladenburg including, but not limited to,
information concerning historical and projected financial results and possible
and known litigious, environmental and other contingent liabilities. The Company
also agrees to make available to Ladenburg such representatives of the Company,
including, among others, directors, officers, employees, outside counsel and
independent certified public accountants, as Ladenburg may reasonably request.
The Company will promptly advise Ladenburg of any material changes in its
business or finances. The Company represents that all information made available
to Ladenburg by the Company will be complete and correct in all material
respects and will not contain any untrue statements of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in light of the circumstances under which such statements are made.
In rendering its services hereunder, Ladenburg will be using and relying
primarily on such information without independent verification thereof or
independent appraisal of any of the Company's assets. Ladenburg does not assume
responsibility for the accuracy or completeness of the information to which
reference is made hereto.
The services herein provided are to be rendered solely to the Company.
They are not being rendered by Ladenburg as an agent or as a fiduciary of the
shareholders of the Company and Ladenburg shall not have any liability or
obligation with respect to its services hereunder to such shareholders or any
other person, firm or corporation.
The Company and Ladenburg hereby agree to the terms and conditions of
the Indemnification Agreement attached hereto as Appendix A with the same force
and effect as if such terms and conditions were set forth at length herein.
This Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof and supersedes and cancels any prior
communications, understandings and agreements between the parties. This
Agreement cannot be terminated or changed, nor can any of its provisions be
waived, except by written agreement signed by all parties hereto or except as
otherwise provided herein. This Agreement shall be binding upon and inure to the
benefit of any successors and assigns of the Company and Ladenburg.
This Agreement shall be governed by and construed to be in accordance
with the laws of the State of New York applicable to contracts made and to be
performed solely in such state by citizens thereof. Any dispute arising out of
this Agreement shall be adjudicated in the courts of the State of New York or in
the federal courts sitting in the Southern District of New York, and the Company
hereby agrees that service of process upon it by registered or certified mail at
its address set forth above shall be deemed adequate and lawful. The parties
hereto shall deliver notices to each other by personal delivery or by registered
or certified mail (return receipt requested) at the addresses set forth above.
Please confirm that the foregoing is in accordance with your
understanding by signing upon behalf of the Company and returning an executed
copy of this Agreement, and the warrant or warrants described herein, whereupon
after execution by Ladenburg this Agreement shall become binding between the
Company and Ladenburg. A telecopy of a signed original of this Agreement shall
be sufficient to bind the parties whose signatures appear hereon.
Very truly yours,
LADENBURG XXXXXXXX & CO. INC.
By:/s/ XXXXXX XXXXX
______________________________
Xxxxxx Xxxxx
Director of Investment Banking
ACCEPTED AND AGREED TO:
EARTHNETMEDIA, INC.
By:/s/ XXXX XXXXX
______________
Name & Title: XXXX XXXXX, PRESIDENT & CEO
___________________________
Date: APRIL 10, 2002
______________
APPENDIX A
INDEMNIFICATION AGREEMENT
Appendix A to Letter Engagement Agreement (the "Agreement") dated
April 8, 2002 by and between EarthNetMedia, Inc. (the "Company") and Ladenburg
Xxxxxxxx & Co. Inc. {"Ladenburg").
The Company agrees to indemnify and hold Ladenburg and its affiliates,
control persons, directors, officers, employees and agents (each an "Indemnified
Person") harmless from and against all losses, claims, damages, liabilities,
costs or expenses, including those resulting from any threatened or pending
investigation, action, proceeding or dispute whether or not Ladenburg or any
such other Indemnified Person is a party to such investigation, action,
proceeding or dispute, arising out of Ladenburg's entering into or performing
services under this Agreement, or arising out of any matter referred to in this
Agreement. This indemnity shall also include Ladenburg's and/or any such other
Indemnified Person's reasonable attorneys' and accountants' fees and
out-of-pocket expenses incurred in, and the cost of Ladenburg's personnel whose
time is spent in connection with, such investigations, actions, proceedings or
disputes which fees, expenses and costs shall be periodically reimbursed to
Ladenburg and/or to any such other Indemnified Person by the Company as they are
incurred; provided, however, that the indemnity herein set forth shall not apply
to the Indemnified Person where a court of competent jurisdiction has made a
final determination that such Indemnified Person acted in a grossly negligent
manner or engaged in willful misconduct in the performance of the services
hereunder which gave rise to the loss, claim, damage, liability, cost or expense
sought to be recovered hereunder (but pending any such final determination the
indemnification and reimbursement provisions hereinabove set forth shall apply
and the Company shall perform its obligations hereunder to reimburse Ladenburg
and/or each such other Indemnified Person periodically for its, his or their
fees, expenses and costs as they are incurred). The Company also agrees that no
Indemnified Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company for or in connection with any act
or omission to act as a result of its engagement under this Agreement except for
any such liability for losses, claims, damages, liabilities or expenses incurred
by the Company that is found in a final determination by a court of competent
jurisdiction to have resulted from such Indemnified Person's gross negligence or
willful misconduct.
If for any reason, the foregoing indemnification is unavailable to
Ladenburg or any such other Indemnified Person or insufficient to hold it
harmless, then the Company shall contribute to the amount paid or payable by
Ladenburg or any such other Indemnified Person as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the Company and its shareholders on the one hand
and Ladenburg or any such other Indemnified Person on the other hand, but also
the relative fault of the Company and Ladenburg or any such other Indemnified
Person, as well as any relevant equitable considerations; provided that in no
event will the aggregate contribution by Ladenburg and any such other
Indemnified Person hereunder exceed the amount of fees actually received by
Ladenburg pursuant to this Agreement. The reimbursement, indemnity and
contribution obligations of the Company hereinabove set forth shall be in
addition to any liability which the Company may otherwise have and these
obligations and the other provisions hereinabove set forth shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, Ladenburg and any other Indemnified Person.
The terms and conditions hereinabove set forth in this Appendix A shall
survive the termination and expiration of this Agreement and shall continue
indefinitely thereafter.
LADENBURG XXXXXXXX & CO. INC.
By: /s/ XXXXXX XXXXX
________________
Xxxxxx Xxxxx
EARTHNETMEDIA, INC. AND ITS AFFILIATES AND RELATED ENTITIES
By: /s/ XXXX XXXXX
______________
Xxxx Xxxxx
