Placement Agency Agreement
February 28, 2000
The Zanett Securities Corporation
Tower 49, 25th Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
This agreement ("Agreement") will confirm that WORLDWIDEWEB
XXXXXXXXX.XXX, INC., a Florida corporation (the "Company"), has retained The
Zanett Securities Corporation ("Zanett" or the "Placement Agent") as its
exclusive placement agent to assist the Company, in connection with the purchase
(the "Purchase") of 11,200 shares of Series A Convertible Preferred Stock of the
Company (the "Preferred Shares") which are convertible into shares of the
Company's common stock, $.001 par value per share (the "Common Stock"), by
certain Initial Investors as defined in the Registration Rights Agreement (the
"Registration Rights Agreement"), pursuant to a Securities Purchase Agreement
(the "Securities Purchase Agreement") of even date herewith, in the aggregate
principal amount of Eleven Million Two Hundred Thousand Dollars ($11,200,000)
(the "Purchase Price").
1. Appointment of Placement Agent. Zanett is hereby appointed Placement
Agent of the Company for the purposes of assisting the Company in connection
with the Purchase. On the basis of the representations and warranties and
subject to the terms and conditions contained herein, Zanett hereby accepts such
agency and agrees to assist the Company in connection with the Purchase.
Zanett's agency hereunder is not terminable by the Company.
2. Closing; Placement Fee and Warrant; Expenses.
a. Closing. Upon satisfaction of the conditions to the closing
contained in the Securities Purchase Agreement, the closing (the "Closing") of
the purchase and sale of the Preferred Shares shall take place at the offices of
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP or such other mutually agreed
place, at such times and dates (each, a "Closing Date") as may be agreed upon
between the Placement Agent, the Initial Investors and the Company.
b. Procedures at Closing. Counsel for the Placement Agent shall act as
escrow agent for the Closing (the "Escrow Agent"). At the Closing:
(i) The Company shall deliver to the Escrow Agent, on behalf of the
Placement Agent and the Initial Investors, an opinion of the Company's outside
legal counsel, dated as of the Closing Date, in such form as required by the
Securities Purchase Agreement.
1
(ii) The Company shall deliver to the Escrow Agent certificates from
the Company, signed by the President or a Vice President thereof, certifying
that attached thereto is a true and correct copy of resolutions adopted by the
Company's Board of Directors authorizing (A) the execution, delivery and
performance of this Agreement, the Securities Purchase Agreement, the
Registration Rights Agreement and other documentation related to the Purchase
(collectively the "Purchase Documents"), (B) the issuance of the Preferred
Shares and (C) the reservation for issuance and issuance of the Common Shares,
and certifying that such resolutions have not been modified, rescinded or
amended and are in full force and effect.
(iii) The Company shall deliver to the Escrow Agent a certificate of
good standing of the Company, dated as of a recent date, from the Secretary of
State of the State of Florida.
(iv) Each Investor shall deliver to the Escrow Agent two executed
copies of the Securities Purchase Agreement and Registration Rights Agreement
signed by such Investor, and the Company shall deliver to the Escrow Agent with
respect to each Investor two executed copies of its acceptance of the Securities
Purchase Agreement and Registration Rights Agreement executed by such Investor.
(v) Each Investor shall have delivered to the Company such Initial
Investor's pro rata portion of Two Million Dollars ($2,000,000) of the Purchase
Price on the date hereof and shall have delivered by wire transfer to an escrow
account designated by the Escrow Agent an amount equal to such Initial
Investor's pro rata portion of the remaining Nine Million Two Hundred Thousand
Dollars ($9,200,000) of the Purchase Price for the Preferred Shares being
purchased by such Investor at the Closing.
(vi) The Company shall have delivered to the Escrow Agent the duly
executed Preferred Shares being purchased by the Initial Investors in such
denominations as the Initial Investors shall request.
(vii) The Company and the Placement Agent shall instruct the Escrow
Agent to pay to the Company the remaining Nine Million Two Hundred Thousand
Dollars ($9,200,000) of the Purchase Price for the Preferred Shares subscribed
for at the Closing, less the Placement Agent Fee (as defined below), out of the
funds on deposit in the escrow account received from the Initial Investors whose
Securities Purchase Agreements have been accepted.
c. Placement Fee; Expenses. The Company covenants and agrees to pay to
the Placement Agent at the Closing a fee (the "Placement Agent Fee") equal to
10.0% of the aggregate gross proceeds payable to the Company for the sale of the
Preferred Shares at the Closing. The Placement Agent Fee shall be delivered by
the Escrow Agent to Zanett by wire transfer, in accordance with Zanett's written
wiring instructions, from the funds on deposit in the escrow account
simultaneously with payment for and delivery of the Preferred Shares at the
Closing under the Securities Purchase Agreement as provided in paragraph 2(a)
above. In addition, the Placement
2
Agent shall be entitled to receive from the Company a non-accountable expense
allowance (the "Expense Allowance") not to exceed Fifty Thousand Dollars
($50,000.00). Lastly, the Company shall pay to the Placement Agent, on the first
day of each calendar month during which any Preferred Shares or Warrants are
outstanding, a monitoring and financial advisory fee of Four Thousand Nine
Hundred Fifty Dollars ($4,950.00).
d. Warrants. In addition to the Placement Agent Fee, at the Closing
under the Securities Purchase Agreement, the Company shall issue, to the
Placement Agent, warrants, in substantially the form attached hereto as Exhibit
A, to purchase 250,000 shares of the Company's Common Stock (the Placement
Warrants"). The Placement Warrants shall be exercisable for a period of three
(3) years beginning the date of issuance at a price per share equal to the
market price of the Company's common stock (the "Common Stock") at the end of
business on the Closing Date. Common Stock issuable upon exercise of the
Placement Warrants shall hereinafter be referred to as the "Placement Warrant
Shares." The Company shall grant the Placement Agent certain registration rights
under the Securities Act with respect to the Placement Warrant Shares pursuant
to the Registration Rights Agreement.
e. Expenses of Purchase. The Company shall be responsible for and shall
bear all expenses directly and necessarily incurred by it in connection with the
Purchase, including, but not limited to, the following: filing fees, registrar
and transfer agent fees, investigatory fees (including, but not limited to
travel, lodging and entertainment expenses), issuer's counsel and accounting
fees, blue sky fees and counsel, if any, and issue and transfer taxes, if any.
f. Non-Circumvention Period; Lock-Up Period; Option on Future
Financing. The Company agrees that, during the period beginning on the date
hereof and ending three (3) years following the later of the date hereof and the
date of the Closing (the "Non-Circumvention Period"), it will not, without the
prior written consent of the Placement Agent, negotiate or contract or have
discussions concerning any such matters with any Investor or any other party
introduced to the Company by Placement Agent to obtain additional financing in
any form. In addition, during the Non-circumvention, as investment bankers to
the Company, Zanett shall approve all mergers, sales, consolidations or
financings involving the Company and which are, in the aggregate, in excess of
Two Hundred Fifty Thousand Dollars ($250,000).
3. Representations and Warranties and Covenants.
a. The Company represents and warrants to Zanett that this Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due execution by Zanett, constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms.
b. The Company has delivered to Zanett true and complete copies of the
SEC Documents (as defined in the Securities Purchase Agreement) filed by the
Company on or after
3
March 31, 1999 with the Securities and Exchange Commission (the "SEC") pursuant
to the reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
c. The Company recognizes and confirms that Zanett (i) will use and
rely primarily on the SEC Documents and on information provided by the Company
in connection with the transactions contemplated by this Agreement in performing
the services contemplated by this Agreement without having independently
verified the same; (ii) is authorized to assist the Company in the structuring
of the Purchase with any prospective purchaser who is an "accredited investor"
as defined in Regulation D under the Securities Act and to provide copies of the
SEC Documents and forms of the Securities Purchase Agreement and other Purchase
Documents to prospective purchasers of the Company's securities in connection
with the performance of Zanett's services hereunder; and (iii) does not assume
responsibility for the accuracy or completeness of the SEC Documents.
d. In addition to the foregoing, the Company hereby incorporates by
reference all of the representations and warranties and covenants to be set
forth in the Securities Purchase Agreement and the other Purchase Documents with
the same force and effect as if specifically set forth herein.
e. So long as Zanett and/or affiliates own any securities of the
Company issued pursuant to the Purchase Documents or this Agreement, (i) the
Company shall provide Zanett, within three (3) business days of the filing or
preparation thereof, with such financial and other statements including, without
limitation, management letters and consolidated financial statements as are
provided to any other lenders to or security holders of the Company; (ii) in the
event any current officer, director, employee, consultant or other agent ceases,
subsequent to the date hereof, to have such relationship with the Company and
such cessation has, or is likely to have, a material adverse effect on the
Company, taken as a whole, the Company shall promptly notify Zanett of such
event, which notification shall comprehensively describe such circumstances;
(iii) the Company shall, on a regular basis, provide to Zanett updates of any
material litigation and/or governmental proceedings which could reasonably be
expected to have a material adverse effect on the business of the Company; and
(iv) the Company shall promptly provide to Zanett notice of any event of default
under any agreement or other document with any lender or holder of any security
of the Company. Zanett shall hold in confidence and shall not make any
disclosure (except to an Initial Investor) or use of any such information
disclosed to it pursuant to clauses (i) through (iv) above which the Company
determines in good faith to be confidential, and of which determination Zanett
is so notified, unless (a) the release of such information is ordered pursuant
to a subpoena or other order from a court or government body of competent
jurisdiction or (b) the information has been made generally available to the
public other than by disclosure in violation of this or any other agreement.
Anything contained herein to the contrary notwithstanding, Placement Agent's
obligations to proceed with the Purchase is conditioned upon Placement Agent's
due diligence investigation of the Company. Zanett shall be fully informed by
the Company of any events which might have a material affect on the financial
condition of the Company. If, in Zanett's opinion, the condition of the Company,
financial or otherwise, and its prospects are affected in a material and/or
4
adverse manner and do not fulfill Zanett's expectations, Zanett shall have the
sole discretion to review and determine its continued interest in the Purchase.
f. So long as Zanett and/or affiliates own any securities of the
Company, the Company shall make available, during regular business hours, all
records and books of account of the Company for inspection by Zanett, subject to
the execution of an acceptable confidentiality agreement. The Company shall
permit Zanett, at its expense and during regular business hours, to inspect its
properties with three days notice and in a manner that does not disrupt
operations.
g. The Company has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement and the Placement Warrants
in accordance with the terms hereof. The execution, delivery and performance of
this Agreement and the Placement Warrants by the Company and the consummation by
it of the transactions contemplated hereby (including, without limitation, the
reservation for issuance and issuance of the Placement Warrant Shares issuable
upon exercise thereof) have been duly authorized by the Company's Board of
Directors and no further consent or authorization of the Company, its Board of
Directors, or its shareholders is required. This Agreement constitutes, and upon
execution and delivery by the Company of the Placement Warrants, such Placement
Warrants will constitute, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms.
h. The Placement Warrants and the Placement Warrant Shares issuable
upon the exercise thereof are duly authorized and, upon issuance of the
Placement Warrant Shares upon exercise of the Placement Warrants in accordance
with the terms thereof, the Placement Warrant Shares will be validly issued,
fully paid and non-assessable, and free from all taxes, liens and charges with
respect to the issue thereof and shall not be subject to preemptive rights or
other similar rights of the shareholders of the Company.
i. The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby will not (A) result in a violation of the Company's Articles of
Incorporation or By-laws or (B) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company is
a party, or result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company is
bound or affected (except, with respect to clause (B), for such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a material adverse effect
on the operation, properties, prospects or financial condition of the Company
("Material Adverse Effect")). The Company is not in violation of its Articles of
Incorporation or By-laws and is not in default (and no event has occurred which
with notice or lapse of time or both would put the Company in default) under,
nor has there occurred any event giving others (with notice or lapse of time or
both) any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company is a party, except for
5
possible defaults as would not, individually or in the aggregate, have a
Material Adverse Effect. The business of the Company is not being conducted, and
shall not be conducted, in violation of any law, ordinance or regulation of any
governmental entity, except for possible violations which either singly or in
the aggregate do not have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and as required under the Securities Act and any
applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency or any regulatory or self regulatory agency in
order for it to execute, deliver or perform any of its obligations under this
Agreement in accordance with the terms hereof.
j. The Company shall at all times have authorized, and reserved for the
purpose of issuance, a sufficient number of Placement Warrant Shares to provide
for the full exercise of the outstanding Placement Warrants.
k. The Company shall promptly secure the listing of the Placement
Warrant Shares upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance) and shall maintain, so long as any other shares of
Common Stock shall be so listed, such listing of all Placement Warrant Shares
from time to time issuable upon exercise of the Placement Warrants.
l. The Company agrees to provide two (2) fully developed web sites for
the Placement Agent, the purpose of each will be determined by the Placement
Agent at a future date and shall be in form and operation reasonably
satisfactory to the Placement Agent.
m. The Company shall perform all corporate obligations which are
necessary to insure that the Placement Agent has the right to appoint one (1)
member of the Board of Directors of the Company at any time if such Board has
five (5) or fewer members and two (2) members to such Board if such Board has
six (6) or more members.
n. The Placement Agent represents and warrants to the Company that:
(i) The Placement Agent is acquiring the Placement Warrants and the
Placement Warrant Shares for its own account and not with a present view towards
the public sale or distribution thereof, except pursuant to sales that are
exempt from the registration requirements of the Securities Act and/or sales
registered under the Securities Act.
(ii) The Placement Agent is an "Accredited Investor" as that term is
defined in Rule 501(a) of Regulation D.
(iii) The Placement Agent understands that the Placement Warrants and
the Placement Warrant Shares are being issued to the Placement Agent in reliance
upon specific exemptions from the registration requirements of United States
federal and state securities laws and that the Company is relying upon the truth
6
and accuracy of, and Placement Agent's compliance with, the representations,
warranties, agreements, acknowledgments and understandings set forth herein in
order to determine the availability of such exemptions and the eligibility of
Placement Agent to acquire the Placement Warrants and the Placement Warrant
Shares.
(iv) The Placement Agent understands that (i) except as provided in the
Registration Rights Agreement, the sale or resale of the Placement Warrants and
the Placement Warrant Shares issuable upon exercise thereof have not been and
are not being registered under the Securities Act or any state securities laws,
and may not be transferred unless (a) the resale of the Securities has been
registered thereunder; or (b) Placement Agent shall have delivered to the
Company an opinion of counsel (which opinion shall be in form, substance and
scope customary for opinions of counsel in comparable transactions) to the
effect that the securities to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; or (c) the Securities are sold
under Rule 144 promulgated under the Securities Act (or a successor rule) ("Rule
144"); or (d) the Securities are sold or transferred to an affiliate of
Placement Agent who agrees to sell or otherwise transfer such securities only in
accordance with the provisions of the terms hereof and who is an Accredited
Investor; and (ii) neither the Company nor any other person is under any
obligation to register such Securities under the Securities Act or any state
securities laws (other than pursuant to the Registration Rights Agreement).
Notwithstanding the foregoing or anything else contained herein to the contrary,
such securities may be pledged as collateral in connection with a bona fide
margin account or other lending arrangement.
(v) This Agreement has been duly and validly authorized, executed and
delivered on behalf of Placement Agent and is the valid and binding agreement of
Placement Agent enforceable against Placement Agent in accordance with its
terms.
(vi) The Placement Agent is a registered broker dealer (as such term is
defined under the Securities Act of 1933, as amended) and has not made any
general solicitations (as such term is defined under the Securities Act of 1933,
as amended) with respect to the sale of the Securities.
4. Publicity. The Company shall not make any reference to Zanett or to
any of its affiliates in any release or other communication without Zanett's
prior written consent. Without Zanett's prior written consent, no advice
rendered by Zanett in connection with the services performed by Zanett pursuant
to this Agreement will be quoted by the Company, its affiliates or
representatives nor will any such advice be referred to in any report, document,
release or other communication, whether oral or written, prepared or issued or
transmitted by such person, except to the extent required by law (in which case
the appropriate party shall so advise Zanett in writing prior to such use and
shall consult with Zanett with respect to the form and timing of the
disclosure).
7
5. Indemnification and Contribution.
a. To the extent permitted by law, each party hereto (such party being
the "Indemnifying Party") will indemnify, hold harmless and defend the other
party hereto and each of its directors, officers, partners, members, employees,
agents and each person who controls such other party within the meaning of the
Securities Act or the Exchange Act, if any, (each, an "Indemnified Person"),
against any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (a) where the Company is the Indemnifying
Party, (i) any transaction contemplated by this Agreement, the retention of
Zanett as Placement Agent under this Agreement, the performance of services by
Zanett hereunder or any involvement or alleged involvement of Zanett in the
Purchase or (ii) any breach of any of the Company's representations, warranties
or covenants contained herein or (b) where Zanett is the Indemnifying Party, any
breach of any of Zanett's representations or warranties contained herein. The
Indemnifying Party shall reimburse each of the Indemnified Persons, promptly as
such expenses are incurred and are due and payable, for any reasonable legal
fees or other reasonable out of pocket expenses incurred by them in connection
with investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 5(a) shall not (i) apply in instances where the Claims were the result
of Zanett's or the Company's, in each case as the Indemnified Person, gross
negligence or based on Zanett's or the Company's, in each case as the
Indemnified Person, wilful misconduct, and (ii) apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld.
b. Promptly after receipt by an Indemnified Person under this Section 5
of notice of the commencement of any action (including any governmental action),
such Indemnified Person shall, if a Claim in respect thereof is made against the
Indemnifying Party under this Section 5, deliver to the Indemnifying Party a
written notice of the commencement thereof, and the Indemnifying Party shall
have the right to participate in, and, to the extent the Indemnifying Party so
desires, to assume control of the defense thereof with counsel mutually
satisfactory to the Indemnifying Party and the Indemnified Person; provided,
however, that an Indemnified Person shall have the right to retain its own
counsel, with the fees and expenses to be paid by the Indemnifying Party, if, in
the reasonable opinion of counsel retained by the Indemnified Person, the
representation by such counsel of the Indemnified Person and the Indemnifying
Party would be inappropriate due to actual or potential differing interests
between such Indemnified Person and any other party represented by the
Indemnifying Party's counsel in such proceeding. The Indemnifying Party shall
pay for only one separate legal counsel for the Indemnified Persons, and such
legal counsel shall be selected by Placement Agent, where the Company is the
Indemnifying Party, or the Company, where the Placement Agent is the
Indemnifying Party. The failure to deliver written notice to the Indemnifying
Party within a reasonable time of the commencement of any such action shall not
relieve the Indemnifying Party of any liability to the Indemnified Person under
this Section 5, except to the extent that the Indemnifying Party is actually
prejudiced in its ability to defend such action.
8
The indemnification required by this Section 5 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due and
payable.
c. To the extent any indemnification by the Indemnifying Party of an
Indemnified Person is prohibited or limited by law or otherwise unavailable in
respect of any Claim, the Indemnifying Party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under this Section 5 to the fullest extent permitted by law. In this regard, the
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Person as a result of any such Claim (i) in such portion as is
appropriate to reflect the relative benefits received by the Indemnifying Party,
on the one hand, and the Indemnified Person, on the other, from the structuring
and issuance of the securities in the Purchase or any other transaction in which
Zanett rendered services hereunder or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Indemnifying Party, on the one hand,
and of the Indemnified Person, on the other, in connection with untrue
statements or omissions or other actions (or alleged untrue statements,
omissions or other actions) which resulted in such Claim as well as any other
relevant equitable considerations. The relative benefits received by the
Indemnifying Party, on the one hand, and the Indemnified Person, on the other,
shall be deemed to be in the same proportion as the total gross proceeds
received by the Indemnifying Party in the Purchase or any other financing bears
to such Indemnified Person's compensation. The relative fault of the
Indemnifying Party on the one hand and of the Indemnified Person on the other
shall be determined by reference to, among other things, whether such untrue
statements or omissions or other actions (or alleged untrue statements,
omissions or other actions) relate to information supplied or action taken by
the Indemnifying Party, on the one hand, or by the Indemnified Person, on the
other, and the relevant persons' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statements,
omission or actions. The amount paid or payable by a party as a result of the
Claim shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim. The Company and Zanett agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above.
d. The aforesaid indemnity and contribution agreements shall apply to
any related activities engaged in by any Indemnified Person prior to this date
and to any modification of Zanett's engagement hereunder, and shall remain in
full force and effect regardless of any investigation made by or on behalf of
Indemnified Person or any of its agents, employees, officers, directors or
controlling persons and shall survive the issuance of any securities in any
transaction referred to hereunder (including the Purchase) and any termination
of this Agreement or Placement Agent's engagement hereunder. Each party hereto
agrees to promptly notify the other party hereto of the commencement of any
litigation or proceeding against it or any of its directors, officers, agents or
employees in connection with the transactions contemplated hereby.
9
e. 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, its owners, creditors or security holders for or in connection with
advice or services rendered or to be rendered by Zanett pursuant to this
Agreement, the transactions contemplated hereby or any Indemnified Person's
actions or inactions in connection with any such advice, services or
transactions except for liabilities (and related expenses) of the Company that
are determined by a final judgment of a court of competent jurisdiction to have
resulted primarily from such Indemnified Party's gross negligence or wilful
misconduct in connection with any such advice, actions, inactions or services.
6. Survival of Certain Provisions. The representations, warranties,
covenants and provisions contained in Section 2(f), Section 3, Section 4 and
Section 5 hereof shall survive in full force and effect until Zanett no longer
owns any Placement Warrants or Placement Warrant Shares, regardless of (a) any
completion or termination of any financing contemplated by this Agreement
(including the Purchase), (b) any termination of this Agreement, or (c) any
investigation made by or on behalf of Placement Agent or any affiliate of
Placement Agent, and shall be binding upon, and shall inure to the benefit of,
any successors, assigns, heirs and personal representatives of the Company,
Zanett, the Indemnified Parties and any holder of Placement Warrants or
Placement Warrant Shares.
7. Miscellaneous.
a. All notices, requests, demands and other communications which are
required or may be given hereunder shall be in writing and shall be deemed to
have been duly given when delivered personally, receipt acknowledged or five (5)
days after being sent by registered or certified mail, return receipt requested,
postage prepaid or by confirmed telecopy. All notices shall be made to the
parties at the addresses designated above or at such other or different
addresses which party may subsequently provide with notice thereof, and, to
their respective legal counsel, as follows:
(i) If to Placement Agent, to
The Zanett Securities Corporation
Tower 49, 31st Floor
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
- with a copy simultaneously transmitted by like means to -
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
Telecopy: 000-000-0000
10
(ii) If to the Company, to
WORLDWIDEWEB XXXXXXXXX.XXX, INC.
0000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Smiley Sansoni
Telecopy: 000-000-0000
- with a copy simultaneously transmitted by like means to -
Atlas Xxxxxxxx Trop & Borkson, P.A.
New River Center, Suite 1900
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esquire
Telecopy: 000-000-0000
b. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. This Agreement, once executed by a
party, may be delivered to the other parties hereto by facsimile transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
c. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York (without regard to its conflict of laws
provisions). The Company hereby agrees to submit to the exclusive jurisdiction
of an arbitration panel of the National Association of Securities Dealers, Inc.
located in the City of New York in the State of New York in connection with any
suit, action or proceeding related to this Agreement or any of the matters
contemplated hereby, irrevocably waives any defense of lack of personal
jurisdiction and irrevocably agrees that all claims in respect of any suit,
action or proceeding may be heard and determined in by such panel. The Company
irrevocably waives, to the fullest extent it may effectively do so under
applicable law any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding brought before any such court and
any claims that any such suit, action or proceeding brought in any such
arbitration panel has been brought in an inconvenient forum. The Company further
agrees to pay or reimburse Zanett for all reasonable costs and expenses incurred
by Placement Agent in connection with the enforcement of any of its rights under
this Agreement, including without limitation, all attorneys' fees and expenses
of its counsel.
d. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
e. This Agreement may not be modified or amended except in writing duly
sworn by the parties hereto.
11
f. If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against its regulatory policy, the remainder of
the terms, provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
g. Each party to this Agreement has participated in the negotiation and
drafting of this Agreement. As such, the language used herein shall be deemed to
be the language chosen by the parties hereto to express their mutual intent, and
no rule of strict construction will be applied against any party to this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
Please sign and return the original and one copy of this letter to
indicate your acceptance of the terms set forth herein whereupon this letter and
your acceptance shall constitute a binding agreement between you and the
Company.
Very truly yours,
WORLDWIDEWEB XXXXXXXXX.XXX, INC.
By:
Name:
Title:
Accepted and Agreed to this 28th day of February, 2000.
THE ZANETT SECURITIES CORPORATION
By:_____________________________________
Name:
Title:
13
