June ___, 2005 Invisa, Inc. Sarasota, FL 34243 Gentlemen, Thank you for the opportunity to work with you and your company, Invisa, Inc.
Exhibit
10.50
June
___,
2005
Invisa,
Inc.
0000
00xx
Xxxxxx
Xxxx, Xxxxx 000
Sarasota,
FL 34243
Gentlemen,
Thank
you
for the opportunity to work with you and your company, Invisa, Inc.
This
letter agreement (the “Agreement”) confirms that Invisa, Inc. (“Client”) has
engaged Ascendiant Securities, LLC (“Ascendiant”) to act on a best efforts basis
as financial advisor and non-exclusive placement agent for the Client in
connection with the structuring, issuance, and sale (the “Transaction(s)”) of
debt and/or equity securities (the “Securities”) for financing purposes.
Ascendiant Securities, LLC is an investment banking firm registered as a
broker-dealer with the U.S. Securities and Exchange Commission (SEC), and
member
of the NASD and SIPC.
Accordingly,
we mutually agree as follows:
| 1. |
Transactions.
Ascendiant anticipates one or more Transactions, involving the
sale of the
Client’s Securities to institutional and/or accredited investors
(“Investor” or “Investors”). The actual terms and structure of each
Transaction will depend on market conditions and will be subject
to
negotiation between the Client (and Ascendiant on behalf of Client
and at
the direction of Client) and prospective Investors. In all instances
the
terms will be subject to the written approval of
Client.
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| 2. |
Engagement.
In
connection herewith, Ascendiant shall provide the following financial
advisory and placement agent services on a best efforts basis to
the
Client:
|
| a. |
advise
the Client with respect to the form and structure of each
Transaction;
|
| b. |
assist
the Client in developing any necessary
materials;
|
| c. |
identify
and make contact with prospective
Investors;
|
| d. |
assist
the Client in conducting presentations and due diligence meetings
with
prospective Investors; and
|
| e. |
provide
such other financial advisory and investment banking services as
are
reasonably necessary to consummate each
Transaction.
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Ascendiant
shall devote such time and efforts to the affairs of the Client as is reasonably
necessary to render the services contemplated by this Agreement. Any work
or
task of Ascendiant provided for herein which requires Client to provide certain
information to assist Ascendiant in completion of the work shall be excused
(without effect upon any obligation of Client) until such time as Client
has
fully provided all information and cooperation necessary for Ascendiant to
complete the work. The services of Ascendiant shall not include the rendering
of
any legal opinions or the performance of any work that is in the ordinary
purview of a certified public accountant.
It
is
expressly understood and agreed that Ascendiant shall have no power to bind
Client to any Transaction or contract obligation. It is further understood
that
in all negotiations, Ascendiant will act only on behalf of Client and only
in
accordance with instructions when given by Client. Client shall have the
right
to refuse any Transaction proposal presented to it without incurring any
obligations to Ascendiant.
It
is
understood and agreed that the execution of this Agreement shall not be deemed
or construed as obligating Ascendiant to purchase any of the Securities and
there is no obligation on the part of Ascendiant to place the Securities.
Although Ascendiant cannot guarantee results on behalf of the Client, it
shall
use its best efforts to provide the services listed above.
| 3. |
Success
Fee.
Client agrees that should Client accept and complete any Transaction(s),
which includes without limitation receiving proceeds from any common
stock
offerings, convertible debt or equity securities, additional investment
rights, or exercise of associated warrants or options (“Securities”) from
any Investors Introduced by Ascendiant during the term of this
Agreement,
which is defined in Section 6 below, or if Client should for a
period of
twelve (12) months following the termination of this Agreement
(including
extensions) accept financing from any Investors Introduced by Ascendiant
or for which Ascendiant was paid a success fee during the Term
hereof or
for which Ascendiant delivered to Client a Term Sheet signed by
the
Investor which was not accepted by Client, there shall become due
and
payable via wire transfer to Ascendiant immediately upon consummation
of
each Transaction, a cash fee equal to seven (7) percent of the
gross
proceeds received by Client from the sale of Securities. Should
Ascendiant
not be paid within five (5) business days of the completion of
a
Transaction, interest at prime rate shall accrue from the date
of the
Transaction. As used herein, the phrase “Introduced by Ascendiant” shall
mean that prior to any introduction Ascendiant notified Client
in writing
of the potential investor and Client consented in writing to Ascendiant
offering the investor an investment opportunity in Client. In the
event
that there are success fees that are required to be paid by Client
to
entities in addition to Ascendiant or which are required to be
paid by the
Investor out of the proceeds of the investment, the maximum success
fee
that Client will be obligated to pay shall be 8% of the net proceeds
received by Client as a cash success fee and 8% warrants pursuant
to
Paragraph 4 hereof which cash success fee and warrants shall be
allocated
by Client among the parties entitled thereto providing that Ascendiant
shall not receive less than 50% of the aggregate
fee.
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| 4. |
Warrants.
Client agrees that should Client accept and complete any Transaction(s)
which includes proceeds received by Client from any common stock
offerings
and/or convertible debt or equity securities from any Investors
introduced
by Ascendiant during the term of this Agreement, which is defined
in
Section 6 below, or if Client should for a period of twelve (12)
months
following the termination of this Agreement (including extensions)
accept
financing from any Investors Introduced by Ascendiant and for which
Ascendiant was paid a success fee during the Term hereof or for
which
Ascendiant delivered to Client a Term Sheet signed by the Investor
which
was not accepted by Client,, there shall become due and payable
to
Ascendiant warrants for the purchase of an amount equal to seven
(7)
percent of the Securities issued by Client at the closing of the
Transaction. The warrants shall be exercisable into Securities
similar to
those issued in the Transaction, and will have an exercise price
and term
consistent with the warrants issued to the Investors. The warrants
shall
contain piggyback registration rights and a net exercise
provision.
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| 5. |
Expenses.
If
the Client requests in writing that Ascendiant travel outside of
Southern
California to perform the services described herein, whether or
not a
Transaction is consummated, Client shall reimburse Ascendiant for
travel-related expenses and payment shall be made within seven
(7) days of
invoice. Ascendiant agrees that following the closing of the first
transaction hereunder it will, at Client’s request and expense travel to
Sarasota Florida to meet with the principals and key employees
of Client
at date to be mutually acceptable to Client and Ascendiant. The
Client
agrees that it will, to the extent that Client deems necessary,
engage
legal counsel at its own expense to assist in the preparation and/or
review of any legal documents or definitive agreements deemed necessary
to
facilitate the Transaction(s) contemplated
herein.
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| 6. |
Term.
The term of this Agreement shall be six (6) months from the date
of
Client’s execution of this Agreement. Additional extensions may be
negotiated as necessary at the mutual written consent of the Client
and
Ascendiant. The termination of this Agreement shall not relieve
Client
from performing as outlined in Sections 3, 4, 5, 6, 7, and
9.
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| 7. |
Representations,
Warranties, and Indemnification.
Each of Ascendiant and Client represents and warrants to each other
that
this Agreement has been duly authorized, executed and delivered
by it;
and, assuming the due execution by the other party, constitutes
a legal,
valid and binding agreement of it, enforceable against it in accordance
with its terms. Each of Ascendiant and Client agrees to comply
with all
applicable securities laws, and the Client will disclose to Ascendiant
all
information necessary for Ascendiant to act upon Client's request
and to
notify Ascendiant promptly of any material changes to such information.
Client hereby represents that it shall notify Ascendiant within
three (3)
business days of the completion of any Securities Transaction(s)
occurring
during the term of this Agreement and/or involving Investors introduced
by
Ascendiant. Additionally, each of the Client and Ascendiant agrees
to
indemnify the other and the other’s affiliates in accordance with the
terms and conditions contained in Exhibit A to this
Agreement.
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| 8. |
Confidentiality.
Ascendiant and Client each agree to keep confidential and provide
reasonable security measures to keep confidential information where
release may be detrimental to their respective business interests.
Ascendiant and Client shall each require their employees, agents,
affiliates, other licensees, and others who will have access to
the
information through Ascendiant and Client respectively, to abide
by the
confidentiality provisions contemplated by this Agreement in perpetuity.
Ascendiant will not, either during its engagement by the Client
pursuant
to this Agreement or at any time thereafter, disclose, use or make
known
for its or another's benefit any confidential information, knowledge,
or
data of the Client or any of its affiliates in any way acquired
or used by
Ascendiant during its engagement by the Client. Confidential information,
knowledge or data of the Client and its affiliates shall not include
any
information that is, or becomes generally available to the public
other
than as a result of a disclosure by Ascendiant or its representatives.
Notwithstanding the foregoing, Client hereby authorizes Ascendiant
to
transmit to prospective Investors, information and materials provided
by
Client and/or developed by Ascendiant on behalf of Client upon
approval by
Client of such materials. Additionally, at any time after the consummation
or other public announcement of the Transaction, Ascendiant may,
at its
own expense, place an announcement in such newspapers and publications
as
it may choose, stating that Ascendiant has acted as financial advisor
and
placement agent to the Client in connection with the Transaction,
and may
use, from time to time, the Client’s name and logo and a brief description
of the Transaction in publications and/or marketing materials prepared
and/or distributed by Ascendiant.
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| 9. |
Non-Circumvention.
In
and for valuable consideration, Client hereby agrees that Ascendiant
may
introduce (whether by written, oral, data, or other form of communication)
Client to one or more Investors, including, without limitation,
natural
persons, corporations, limited liability companies, partnerships,
unincorporated businesses, sole proprietorships and similar entities
(hereinafter an “Investor” or “Investors”). Client further acknowledges
and agrees that the identity of the subject Investors, and all
other
information concerning Investors (including without limitation,
all
mailing information, phone and fax numbers, email addresses and
other
contact information) introduced hereunder are the property of Ascendiant,
and shall be treated as confidential and proprietary information
by
Client, its affiliates, officers, directors, shareholders, employees,
agents, representatives, successors and assigns.
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| 10. |
Governing
Law.
This Agreement shall be governed by and construed in accordance
with the
laws of the State of California applicable to contracts executed
and to be
wholly performed therein without regard to its conflict of law
doctrine.
The Client and Ascendiant hereby agree that any dispute concerning
this
Agreement shall be resolved through binding arbitration before
the NASD in
Los Angeles County, pursuant to its arbitration rules.
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| 11. |
Entire
Agreement.
This Agreement represents the entire agreement by and between the
Client
and Ascendiant and supersedes any and all other agreements, either
oral or
written, with respect to the Agreement. Each party to this Agreement
acknowledges that no representation, inducements, promises or agreement,
orally or otherwise, have been made by any party, or anyone acting
on
behalf of any party, which are not embodied herein, and that no
other
agreement, statement, or promise not contained in this Agreement
shall be
valid or binding. The Client and Ascendiant hereby agree that the
opening
and closing statements of this Agreement are incorporated herein
by this
reference and made a material part of this Agreement. If any part
of this
Agreement is found, or deemed by a court of competent jurisdiction,
to be
invalid or unenforceable, that part shall be severable from the
remainder
of the Agreement. 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. Any modification
of
this Agreement will be effective only if it is in writing and signed
by
the Client and Ascendiant.
|
Please
initial each page, sign below, and return an original and one copy of this
letter to the undersigned to indicate your acceptance of the terms set forth
herein, whereupon this letter and your acceptance shall constitute a binding
agreement by and between Invisa, Inc. and Ascendiant Securities, LLC as of
the
date first above written. We appreciate the opportunity to be of service
and
look forward to a cooperative working relationship with you and your
staff.
| Sincerely | Accepted and Agreed: | ||
| Ascendiant Securities, LLC | Invisa, Inc. | ||
| /s/ Xxxx Xxxxxxxxxx | /s/ Xxxxxxx X. Xxxxxxx | ||
|
Name: Xxxx Xxxxxxxxxx |
Name Xxxxxxx X. Xxxxxxx |
||
| Title
Managing
Director |
Title Acting President | ||
| Date: | Date: |
