EXHIBIT 10.12
Friday, July 14.2000
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
CEO
IAMG Holdings Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇:
This letter sets forth the terms arid conditions upon which International
Technologies 3 Finance, L.L.C. (ITF) agrees to act as an exclusive advisor to
IAMG Holdings Inc('Client").
1. APPOINTMENTS AND DUTIES. Client hereby appoints ITF as its
advisor curing the term of this agreement (the "Agreement"). and ITF accepts
such engagement. ITF will provide the Client with the advisory services
described below and assist Client in obtaining an amount to be determined or any
other amount deemed necessary ("Financing on an exclusive basis.
ITF agrees to perform the following services for Client during
the term of the Agreement:
a) Advise the Client with respect to the form and structure of
any proposed Financing.
b) Identity and initiate contact with prospective financing
sources.
c) Assist the Client in defining plans for structuring the
participation of strategic partners in the development and expansion of Clients
business.
d) Assist the Client with its presentation to appropriate
sources of financing: it being understood, that assistance with any preparation
of Business Plans deemed necessary by ITF and Client shall be performed pursuant
to and under a separate engagement.
e) Assist Client in closing a potential Financing. Client
understands and acknowledges that ITF is not a registered broker dealer. and
accordingly that ft will not act as a placement agent or underwriter for the
sale, or otherwise effect or solicit the purchase, of Client's securities in
connection with a proposed Financing.
2. COMPENSATION.
a) In consideration for its services hereunder, ▇▇▇▇▇▇ agrees
to pay ITF during the term of this Agreement a consulting tee of $8000 per month
(the "Monthly Fee"). The initial payment of the Monthly Fee shall be due and
payable contemporaneously with the execution and delivery to ITF of this Letter
of Authorization, with each subsequent Monthly Payment due and payable on the
ante of each calendar month thereafter corresponding to the date of the initial
payment. Client's obligation to pay the Monthly Fee is not subject to the
presentation of invoices from ITF.
b) Client agrees to reimburse ITF for all receipted
out-of-pocket expenses incurred in connection with this Agreement on a monthly
basis, not including but not limited to printing, mailing, reproduction. travel
and lodging expenses; provided, however, that ITF shall not incur any expense in
excess of $150 without the prior written approval of Client, which expense shall
be paid in advance by Client.
c) If the proposed financing is a Private Placement, the
Company agrees to pay ITF an amount equal to 6% on equity and/or 4% on debt of
the gross proceeds of the Financing (a "Transaction Fee") consummated by the
Client during the term of this Agreement. which payment shall be due and payable
contemporaneously upon the closing of the Financing. In addition, the Client
will grant ITF an option to purchase Units (i.e., Stock in the Client) in an
amount equal to 10% of the number of total number of units sold (i.e. fully
diluted, including all equity. warrants, or common equivalent shares) in the
Private Placement. This Option will become executable anytime during a period of
5 years beginning on the date which is exactly 6 months after the Client
receives the funding as described above from the underwriter of record. The
purchase price of these Shares shall be equal to the price paid by the equity
investors.
d) Once the funding contemplated by this agreement has been
secured, i.e. one month subsequent to funding the client agrees to engage ITF as
its strategic advisor for a period not less than one-year at a rate of $8000.00
per month.
e) The fees set forth above shall be in addition to any other
fees that the dent may be required to pay directly to any financing source to
secure its financial commitment. This agreement does not constitute a commitment
or undertaking on ITF's part to provide any part of the financing and does not
ensure the successful arrangement or completion of the financing or any portion
thereof.
f) It is understood that the Client is in no way obligated to
accept any transaction, however If Client voids its initial acceptance of a
letter of Intent issued by an underwriter, funder, investment bank, equity fund,
bank, etc. introduced to Client by ITF, then ITF will receive Transaction Fee
otherwise payable to TE pursuant to this Agreement.
This compensation will be due and payable only in the event
that Client fails to proceed with the aforementioned acceptance, but in no way
will Client be obligated to proceed nor will compensation be due if the offer
has been materially changed subsequent to Client's acceptance, and thus becomes
unacceptable to Client.
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9) The Client agrees to pay for any and all costs, fees, and
expenses incurred by ITF in collecting the compensation under this Letter of
Agreement, including but not limited to legal fees, collection fees, filing
fees, etc
h) Client hereby acknowledges the exclusive nature of this
Letter of Agreement, except as set forth in this paragraph and Client agrees
that if Client accepts funds or investments from any party not introduced by
ITF, then ITF will recE.9've the Transaction Fee otherwise payable to ITF
pursuant to this Agreement had said funds or investments been delivered though
an ITF introduction. ITF acknowledges that the Client is in the process of
preparing a Private Placement Offering ("PRO") which seeks to obtain a minimum
of S21000,O00 and maximum of $15,000,000 from qualified investors. Client may
elect to offer the PRC to qualified investors no earlier than 30 days from the
date of this Letter of Agreement and ITF will receive the transaction fees as
set forth in 2 (a) above.
ITF hereby agrees to facilitate the funding of Client, and ITF
will, if required by capital ~ We investor), agree to convent some portion of
the cash component of its Transaction fees to equity at a rate agreed to by both
ITF and Client.
i) in the event that Client has engaged ITF for the
development of its business strategy prior to introduction to strategic economic
partners, then the term of this agreement shall be extended by a maximum period
of 30 (thirty) days from the date on which both Client and ITF agree that Client
is now appropriately prepared for introduction to relevant strategic and capital
partners. All other components of termination shall be as articulated in
paragraph 3 of this letter of agreement.
3. TERM AND TERMINATION,
a) This Agreement shall have an initial term of four months,
commencing upon the execution and delivery by the Client to ITF of this Letter
of Agreement, which term shall be renewed automatically for successive one month
periods unless terminated by written notice to the other party not less than 30
days prior to the end of the initial term or any renewal term. In addition, ITF
may terminate this Agreement at any time upon written notice to Client if Client
fails to pay to ITF the Monthly Fee or Transaction Fee within five days of the
due date for the payment thereof
Notwithstanding such termination Client shall remain liable to
ITF for the payment of all amounts payable under this Agreement as of the date
of termination.
b) Subsequent to '3uccessful financing, the strategic advisory
Services i.e. paragraph 2d shall renew automatically for an additional one-year
period if not cancelled in writing at 'east sixty days prior to the on-year
anniversary of execution of this Letter of Agreement. (See notices.)
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c) Upon the termination of this Agreement, Client shall cease
all communication with all parties, underwriters, funders, investment banks,
equity funds, banks, etc. introduced to the Client by ITF If Client consummates
a Financing with any of the parties introduced to Client by ITF after
termination of this Agreement by either party, Client shall pay ITF, as
liquidated damages and not as a penalty, the Transaction Fee otherwise payable
to ITF pursuant to this Agreement, except that if the Agreement is terminated by
IF for cause, or by the client without any Cause Client shall pay en amount
equal to 200% of the Transaction Fee.
4. INFORMATION.
a) Client agrees that it will cooperate with IIF and furnish
ITF all reasonable, mutually agreed upon information and data concerning the
Client and the proposed Financing (collectively, the "Information"), and will
provide ITF and the Approved Parties with access to the Client's officers
directors, employees, accountants and counsel, as well as its books, records,
and facilities, as part of their due diligence of the Client, ail at Clients
expense, subject to the limitations expressed in paragraph 2(b) of this
Agreement. If such interviews and due diligence demonstrate substantive and/or
material discrepancies from that which was represented by the Client, then ITF
shall have the right to terminate this agreement and be held harmless from any
claims of the Client for such termination.
b) The Client represents and warrants to ITF that all
Information made available to ITF or the Approved Parties or contained in any
materials prepared by the Client with respect to a proposed Financing, will, at
all times during tine term of this Agreement, be true, accurate and completed in
all material respects and will fairly represent the Information presented. The
Client further represents that any projections provided to ITF or contained in
any materials prepared by the Client with respect to a proposed Financing: will
be prepared in good faith and will be based upon assumptions which, in light of
the circumstances under which they are made, are, in Client determination,
reasonable.
c) The Client acknowledges and agrees that in rendering its
services hereunder, ITF will be using and relying on the Information (and
information available from public sources and other sources which it deems to be
reliable) without independent verification thereof and without independent
appraisal of any of the Client's assets. IIF does not assume responsibility for
the accuracy or completeness of the Information.
5. CONFIDENTIALITY. Except to the extent necessary to perform
its obligations hereunder or to comply with any applicable law, regulation, or
rule, neither panty shall disclose OR divulge to any third party, other than its
directors, officers, shareholders, auditors, or legal advisors, either before or
after the termination of this Agreement this Agreement or any document or
information exchanged between the parties during the term of this Agreement,
without the prior written consent of the other party which consent shall not be
unreasonably withheld.
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6. NON-CIRCUMVENTION.
a) The Client will not, directly or indirectly through or with
others, In any manner attempt to or knowingly contact, deal with or employ the
identities of any person directly or indirectly introduced to the Client by IIF,
except as provided in this Agreement, without the prior written consent of ITF.
These restrictions will not apply if the Client can establish through written
evidence that it was actively pursuing or does business with the person
introduced by ITF prior to the introduction.
b) Unless otherwise agreed to in writing, ITF will be entitled
to full compensation from the Client (as provided in section 2) if the Client or
any of its affiliates consummates any transaction or derives any economic
benefit as a direct or indirect result of any introduction or disclosure made
under this Agreement. This provision will be effective during the term of this
Agreement and for an additions; period of twenty4our (24) months thereafter, and
will apply to any transaction or series of transactions initiated during such
period even if payment is received thereafter.
7. INDEMNIFICATION. The Client will enter into the
Indemnification Agreement which is annexed hereto as Exhibit A concurrently with
the execution and delivery of this Agreement.
8. NOTICES. Al1 notices, requests, demands and other
communications which are required or permitted under this Agreement shall be in
writing and shall be deemed sufficiently given upon receipt if personally
delivered or mailed by certified mail, return receipt requested, addressed to
the party to be notified at the address set forth above for such panty or to
such other address as such party may hereafter designate in writing to he other
party in accordance with the provisions of this paragraph.
9. APPLICABLE LAW. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York,
without giving effect to conflicts of law principles.
10. SEVERABILITY. If any provision of this Agreement shall to
any extent be held or determined to be invalid or unenforceable, the validity1
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired, and this Agreement shall be construed so as to
effectuate as nearly as possible the intent of said provision and the intent of
the parties.
11. SURVIVAL. The representations, warranties, covenants and
indemnities contained in this Agreement (including the indemnification
provisions set forth in Exhibit A) shall survive the termination of this
Agreement for a period of two years after such termination.
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12. BINDING EFFECT: BENEFITS. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective legal
representatives, Successors and permitted assigns, and no other person shall
acquire or have any other rights under this Agreement or by virtue of this
Agreement.
13. ASSIGNMENT Neither this Agreement nor any right. remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by ITF or Client without the prior written consent of the other.
14. WAIVER. Any waiver by any party of a breach or the
provisions of this Agreement shall not operate as or be construed to be a waiver
of any other breach of that provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions will not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any othi3r term of this Agreement.
15. ENTIRE AGREEMENT MODIFICATION. This Agreement (including
the exhibits hereto; constitutes the entire understanding between the panties
with respect to its subject matter. It supersedes and cancels all prior
agreements and understandings among the parties relating to its subject matter.
This Agreement may not be amended or supplemented, except by subsequent written
agreement of the parties which specifically states that :it is intended to be an
amendment or supplement to this Agreement, signed by the parties hereto. No
course of dealing or custom shall be referred to as modifying any of the terms
and conditions of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be enforceable against tie parties
actually executing such counterparts, and all of which together shall constitute
one instrument.
PLEASE CONFIRM THAT THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING BY
SIGNING AND RETURNING TO ITF THE EXECUTED DUPLICATE COPY OF THIS AGREEMENT. WE
ARE ENTHUSIASTIC ABOUT THE PROSPECT OF WORKING WITH YOU ON THIS AND LOOK FORWARD
TO THE BEGINNING OF A LONG AND FRUITFUL RELATIONSHIP.
Further, it is agreed that an executed facsimile or copy of this
document is a legal and binding contract with the same force as the original.
This Letter of Agreement will terminate and be void seven (7)
business days from the dare above unless executed by Client.
INTERNATIONAL TECHNOLOGIES & FINANCE, LLC IAMG HOLDINGS INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------- ----------------------
Chairman and CEO CEO
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INDEMNIFICATION
EXHIBIT A
The Client agrees to indemnify ITF, its employees, directors,
officers, agents, affiliates, and each person, it any, who controls it within
the moaning of either Section 20 of the Securities Exchange Act of 1934 or
Section 15 of the Securities Act or 1933 (each Such person, including ITF, is
referred to as an "indemnified Party") from and against any losses, claims,
damages and liabilities, joint or several (including. all legal to other
expenses reasonably incurred by an Indemnified Party in connection with the
preparation for or defense of any threatened or pending claim, action or
proceeding, whether or not resulting in any liability) ~("Damages"), to which
such Indemnified Party in connection with its services or arising out of its
engagement hereunder, may become subject under any applicable Federal or state
law or otherwise, including but not limited ;o, liability (i) caused by or
arising out of an untrue statement or an alleged untrue statement of a material
fact or the omission or the alleged omission to states a material fact necessary
in order to make the statement not misleading in light of the circumstances
under which it was made, (ii) caused by or arising out of any act. or (III)
arising out of ITF's engagement or the rendering by any Indemnified Party of its
services under this Agreement; provided, however, that the Client will not be
liable to the Indemnified Party hereunder to the extent that any damages are
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence. bad faith or willful misconduct of tine
Indemnified Party seeking indemnification hereunder.
These indemnification provisions shall be in addition to any
other liability which the Client may otherwise have to any Indemnified Party.
If for any reason other than a final non-appealable judgment
finding any Indemnified Party liable for Damages for its gross negligence, bad
faith or willful misconduct he foregoing indemnity is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party harmless, the
Client shall contribute to the amount paid or payable by an Indemnified Party as
a result of such Damages in such proportion as is appropriate to reflect not
only the relative benefits received by the Client and its shareholders on the
one hand and ITF on the other, but also the relative fault of the Client and the
Indemnified Party as well as any relevant equitable considerations, subject to
the limitation that in the event shall the total contribution of all indemnified
Parties to all such Damages exceed the amount of fees actually received by ITF
hereunder.
Promptly after receipt by the Indemnified Party of notice of
any claim or of the commencement of any action In respect of which indemnity may
be sought, the Indemnified Party will promptly notify the Client in writing of
the receipt or commencement thereof, however the Client shall not have the right
to assume the defense of such claim or action (including the employment of
counsel). The Indemnified Party shall have the right to retain counsel
reasonably satisfactory to the Client, at the Client's expense, to represent the
Indemnified ▇▇▇▇▇ in any claim or action in respect of which indemnity may be
sought and agrees to cooperate with the Client and the Client's counsel in the
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defense of such claim or action. The omission by an Indemnified Party to
promptly notify the Client of the receipt or commencement of any claim or action
in respect of which indemnity may be sought will relieve the Client from any
liability the Client may have to such indemnified Party only to the extent that
such a delay in notification materially prejudices the Client's ability to
defend such claim or action. The Client shall not be liable for any settlement
of any such claim or action effected without 3ts written consent. which shall
not be unreasonably withheld or delayed. Any obligation pursuant or this
Appendix shall survive the termination to expiration of this Agreement.
INTERNATIONAL TECHNOLOGIES & FINANCE, L.L.C
Chairman & CEO
Date:
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