EXHIBIT 10.34
AGENCY AGREEMENT
USA Commercial Mortgage Company, a Nevada corporation, ("USA"), and INCO
Homes Corporation, a Delaware corporation ("Inco) hereby agree that USA shall
provide financial advisory and consulting services to Inco in connection with
the proposed merger (the "Merger") between Inco and American Communities Inc., a
Nevada corporation ("AmCom"). In connection therewith, the parties further
agree as follows:
1. Scope of Services. USA has located AmCom to merge with Inco, and will
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assist Inco in structuring the transaction required to accomplish the Merger.
USA has no obligation hereunder to raise any money. Should Inco desire that USA
raise money to accomplish the Merger, or for any other reason, then a separate
agreement between the parties shall be prepared, which shall include appropriate
provisions for the compensation of USA.
2. Information on Inco. In connection with USA's activities hereunder,
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Inco will, at USA's request, furnish USA with all material and information
regarding its business and financial conditions (all such information so
furnished being the "Information") and with an information memorandum with
respect to Inco and the Merger (such memorandum, including all exhibits or
supplements thereto, the "Offering Materials"). Inco recognizes and confirms
that USA: (a) will use and rely solely on the Information, the Offering
Materials and on information available from generally recognized public sources
in performing the services contemplated by this Agreement without having
independently verified the same; (b) is authorized as Inco's financial advisor
to transmit to AmCom a copy or copies of the Information, Offering Materials and
other legal documentation necessary or advisable in connection with the
transaction contemplated hereby; (c) does not assume responsibility for the
accuracy or completeness of the information; (d) will not make an appraisal of
any assets or liabilities of Inco; and (e) retains the right to continue to
perform due diligence on Inco during the course of the engagement.
3. Structure of Deal. Inco acknowledges that the structure of the
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Merger as presently contemplated will result in Inco's being the surviving
company. Inco will acquire AmCom in exchange for cash or other commercial paper
and/or securities, with the securities being either debt or equity instruments,
or a combination of both. The parties understand, however, that a different
form of combination may ultimately occur.
4. Conflicts of Interest. USA shall use its best judgment to fully,
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fairly, and honestly advise Inco regarding methods, procedures, sources and
structuring of the financing to accomplish the Merger (or other form of
combination, if a different form is ultimately deemed appropriate). USA
represents, however, that its expertise is in developing financing strategies
and plans, and in understanding the financial markets, not in the legal
ramifications, whether regarding conflicts or otherwise, of any particular
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plan. Inco represents that it is sophisticated, and has independent, competent
legal counsel with whom it is consulting with respect to all aspects of the
Merger.
5. Use of Name. Inco agrees that any reference to USA in any release,
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communication, or material distributed to prospective financiers of Inco or the
Merger is subject to USA's prior written approval, which may be given or
withheld in its sole discretion. If USA resigns prior to the dissemination of
any such release, communication or material, no reference shall be made therein
to USA, despite any prior written approval that may have been given therefor.
6. Use of Advice. No statements made or advice rendered by USA in
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connection with the services performed by USA pursuant to this Agreement will be
quoted by, nor will any such statements or advice be referred to in, any report,
document, release or other communication, whether written or oral, prepared,
issued or transmitted by Inco or by any person or corporation controlling,
controlled by or under common control with Inco, or by any director, officer,
employee, agent or representative of any such person, without the prior written
authorization of USA, which may be given or withheld in its sole discretion,
except to the extent required by law ( in which case the appropriate party shall
so advise USA in writing prior to such use and shall consult with USA with
respect to the form and timing of disclosure).
7. Compensation. In full payment for services rendered and to be
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rendered hereunder by USA, Inco agrees to compensate USA, upon completion of the
Merger contemplated herein, as follows:
(a) Subject to shareholder approval, USA shall receive an option to
purchase up to 250,000 shares of common stock in the merged Company, adjusted
for stock splits and stock dividends, for $2.00 per share, which option shall be
exercisable for ten years, and which shall permit USA to purchase, at its
option, any or all of the shares at any time or times during the ten year
period. This shall be the sole compensation for USA's services hereunder, and
USA shall be completely liable for all of its out-of-pocket costs and expenses,
time and overhead in connection with performing its services hereunder.
(b) In addition to the foregoing, USA shall have the right to demand and
receive registration rights for the stock underlying its option at any time
until February 1, 2000. USA and its affiliates, including International Equity
Partners, agree to a lockup of their shares until February 1, 2000.
(c) If Inco's shareholders do not approve the stock options and
registration rights
described above, then USA shall receive for its services rendered hereunder the
sum of $400,000, payable as follows: (1) $200,000 within two business days of
the day that Inco's shareholder's approve the transaction, in whatever form the
companies finally agree upon, combining AmCom and Inco; and (2) $50,000
quarterly thereafter.
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(d) USA may resign at any time, and Inco may terminate USA's services
at any time, each by giving written notice to the other. If Inco terminates
USA's services hereunder, Inco completes the Merger contemplated herein within
one year of such termination, then Inco shall grant to USA concurrently with the
closing of such transaction the option described in Section 7(a).
8. Representations and Warranties. Inco represents and warrants to USA
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that (a) this Agreement has been duly authorized, executed and delivered by
Inco; and, assuming the due execution by USA, constitutes a legal, valid and
binding agreement of Inco, enforceable against it in accordance with its terms,
and (b) the Information and the Offering Materials will not, when delivered nor
at the closing of the Merger contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. Inco shall
advise USA promptly of the occurrence of any event or any other change prior to
the closing which results in the Information or Offering Materials containing
any untrue statement of a material fact or omitting to state any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. Inco shall deliver to
USA an appropriate resolution of its Board of Directors approving this contract,
it being understood that Xxxxxx Xxxxxxx will not participate in the vote on that
resolution. Inco further agrees to jointly issue a disclosure statement
regarding the relationship between itself and USA in connection with this
Agreement.
9. Survival of Certain Provisions. The provisions of Section 2, 3, 4, 5,
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6, 7, 8, 9, 15 and 16 of this Agreement shall remain operative and in full force
and effect regardless of (a) any investigation made by or on behalf of USA, or
by or on behalf of any affiliate of USA or any person controlling either, (b)
completion of the Merger, (c) the resignation of USA or any termination of USA's
services or (d) any amendment, expiration or termination of this Agreement, and
shall be binding upon, and shall inure to the benefit of, any successors,
assigns, heirs and personal representatives of Inco, USA, and the Indemnified
Persons.
10. Notices. Notice given pursuant to any of the provisions of this
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Agreement shall be in writing and shall be mailed or delivered (a) if to Inco,
at 0000 Xxxx Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxxx;
and (b) if to USA, at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000,
Attention: Xxxxxx Xxxxxxx.
11. Counterparts. This Agreement may be executed simultaneously in two
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or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
12. Assignment. This Agreement may not be assigned by any party hereto
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without prior written consent of the others, to be given in the sole discretion
of the parties from whom such consent is being requested. Any attempted
assignment of this
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Agreement made without such consent may be void, at the option of the non-
assigning parties.
13. Third Party Beneficiaries. This Agreement has been and is made solely
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for the benefit of Inco, USA and the other Indemnified Persons referred to in
schedule A hereof and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement.
14. Construction and Choice of Law. This Agreement incorporates the
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entire understanding of the parties and supersedes all previous agreements
relating to the subject matter hereof should they exist and shall be governed
by, and construed in accordance with, the laws of the State of Nevada, without
regard to principles of conflicts of law.
15. Jurisdiction and Venue. Each party hereto consents specifically
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to the exclusive jurisdiction of the courts of the State of California, sitting
in the County of San Bernardino, and any court to which an appeal may be taken
in connection with any action filed pursuant to this agreement, for the purposes
of all legal proceedings arising out of or relating to this Agreement. In
connection with the foregoing consent, each party irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the court's exercise of personal jurisdiction over each party to this
Agreement or the laying of venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. Each party further irrevocably waives its right to a
trial by jury and consents that service of process may be effected in any manner
permitted under the laws of the State of California.
16. Headings. The section headings in this Agreement have been inserted
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as a matter of convenience of reference and are not part of this Agreement.
17. Amendment. This Agreement may not be modified or amended except
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in a writing duly executed by the parties hereto.
18. Term. Except as provided herein, this Agreement shall run from the
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date of this Agreement to a date of one year thereafter, unless extended by
mutual consent of the parties (the "Term").
Dated this ___ day of February, 1999.
USA COMMERCIAL MORTGAGE COMPANY INCO HOMES CORPORATION
By:__________________________________ By:__________________________
Xxxxxx X. Xxxxxxxxxx, President Xxx Xxxxxx, President
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