Placement Agency Agreement
July 2, 1997
The Zanett Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
This agreement ("Agreement") will confirm that Network Imaging
Corporation, a Delaware corporation (the "Company"), has retained The Zanett
Securities Corporation ("Zanett" or the "Placement Agent") as its exclusive
placement agent to assist the Company, during the six-week period commencing on
the date hereof ("Term"), on a "best-efforts" basis, with the placement of
shares of the Company's Series K preferred stock (the "Preferred Shares") and
Warrants (the "Warrants") to purchase shares of the Company's Common Stock
("Common Stock"), at an aggregate purchase price of up to $11,000,000,
substantially on the terms and conditions set forth herein. The Preferred Shares
will be convertible into shares of Common Stock substantially upon the terms and
subject to the limitations and conditions set forth in the term sheet, attached
hereto as Exhibit A ("Term Sheet"). The Company agrees that during the Term,
Zanett shall have the exclusive right to offer and place the Preferred Shares
and the Warrants and that all conversations, negotiations, documents and other
materials exchanged between the Company and the Placement Agent shall not be
disclosed or released to any third party without the prior written consent of
Zanett; provided, that the Company may disclose such materials to its counsel
and accountants and may disclose the terms of the Offering to Xxxxxxxx, Xxxxxxxx
& Xxxxxx so long as each of such parties agrees to respect the confidentiality
obligations established hereby in accordance with the terms hereof.
The Preferred Shares are being offered to "accredited investors" in
accordance with Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). Each prospective investor ("Investor")
subscribing to purchase the Preferred Shares will be required to deliver, among
other things, a securities purchase agreement between the Company and the
Investor ("Securities Purchase Agreement") in form and substance reasonably
satisfactory to Zanett and the Company, representing and warranting, among other
things, that such Investor is an "accredited investor" as such term is defined
in Regulation D. Contemporaneous with the execution and delivery of the
Securities Purchase Agreement, the Investors shall execute and deliver a
Registration Rights Agreement (the "Registration Rights Agreement") in form and
substance reasonably satisfactory to Zanett and the Company pursuant to which
the Company will agree to provide the Investors certain registration rights
under the Securities Act.
The Securities Purchase Agreement and the Registration Rights Agreement
are referred to herein collectively as the "Offering Documents." The offering of
Preferred Shares and Warrants described in the Offering Documents is referred to
herein as the "Offering."
1. Appointment of Placement Agent. Zanett is hereby appointed Placement
Agent of the Company for the purposes of assisting the Company in finding
qualified Investors to participate in the Offering. In accepting this
engagement, Zanett represents to the Company it is registered as a broker dealer
under the laws of the United States and will not solicit any person in any
jurisdiction in which it is not registered as a broker dealer. Moreover, Zanett
shall not engage in any "general advertising" or "general solicitation" in
connection with the Offering, as such terms are defined in Regulation D under
the Securities Act. The Investors are required to submit, by wire transfer, full
payment for their respective investments at the time they enter into the
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Securities Purchase Agreement and all such payments received from Investors
shall be held in an escrow account at First Union National Bank of Georgia or
such other reputable entity as may be designated by the Placement Agent (the
"Escrow Agent"). On the basis of the representations and warranties and subject
to the terms and conditions contained herein, Zanett hereby accepts such agency
and agree to assist the Company in finding qualified Investors to participate in
the Offering. In performing services hereunder Zanett shall only utilize such
information as is contained in the Offering Documents, the SEC Documents (as
defined below) or in publicly available documents and information provided to
Zanett or its representatives by the Company in connection with its engagement
hereunder and Zanett shall not make any statements to any Investors which are
inconsistent with such information. Zanett's agency hereunder is not terminable
by the Company except upon termination of the Offering or at the end of the
Term. Upon termination of the Offering, all subscriptions received, if any,
shall be returned to Investors.
2. Closing; Placement Fee and Warrant; Expenses.
(a) Closing. Upon satisfaction of the conditions to closing
contained in the Securities Purchase Agreement, the closings (each a "Closing")
of the purchase and sale of the Preferred Shares and Warrants shall take place
at the offices of Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx or such other
mutually agreed place, at such times and dates (the "Closing Dates") agreed upon
between the Placement Agent, the Investors and the Company.
(b) Procedures at Closing. At each Closing:
(i) The Placement Agent on behalf of itself and the
Investors shall receive the opinion of Company's outside legal counsel, dated as
of the applicable Closing Date, in such form as may be reasonably acceptable to
the Placement Agent and its counsel.
(ii) Counsel for the Placement Agent shall receive
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 Placement Warrants
(as defined below), the Securities Purchase Agreement, the Registration Rights
Agreement and other documentation related to the Offering, and (B) the issuance
of the Preferred Shares and Warrants and the Common Stock and other securities
(if any) issuable upon conversion of the Preferred Shares and exercise of the
Warrants and the Placement Warrants, and certifying that such resolutions have
not been modified, rescinded or amended and are in full force and effect.
(iii) The Certificate of Designation shall have been
accepted for filing with the Secretary of State of Delaware, and a copy thereof
certified by such Secretary of State shall be delivered to the Placement Agent
on behalf of itself and the Investors.
(iv) The Placement Agent shall have received a
certificate of good standing of the Company, dated as of a recent date, from the
Secretary of State of the State of Delaware.
(v) There shall be delivered on behalf of each
Investor two copies of the Securities Purchase Agreement and Registration Rights
Agreement signed by each Investor and accepted by the Company.
(vi) Each Investor shall have delivered to the Escrow
Agent the full purchase price for his respective number of shares of Preferred
Shares and Warrants being purchased at such Closing.
(vii) The Company shall have delivered duly executed
certificates (in such denominations as such Investor shall request) representing
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the Preferred Shares and Warrants being so purchased at such Closing to the
Escrow Agent.
(viii) The Company shall have delivered duly executed
warrant certificates (in such denominations as the Placement Agent shall
request) representing the Placement Warrants being issued to Zanett, its
affiliates, assigns or designees at such Closing.
(ix) The Company and the Placement Agent shall
instruct the Escrow Agent to pay to the Company the purchase price (the
"Purchase Price") for the Preferred Shares and Warrants subscribed for at such
Closing, less the Placement Agent Fee (as defined below), out of the funds on
deposit in the escrow account, as such funds are received from Investors whose
Securities Purchase Agreement have been accepted.
(c) Placement Fee. Simultaneously with payment for and
delivery of the Preferred Shares and Warrants at each Closing under the
Securities Purchase Agreement as provided in paragraph 2(a) above, the Escrow
Agent shall pay to the Placement Agent from the funds on deposit a commission
equal to eight percent (8%) of the aggregate gross proceeds received by the
Company from the sale of the Preferred Shares and Warrants sold at such Closing
(the "Placement Agent Fee"). Such Placement Agent Fee shall be payable to Zanett
by wire transfer, in accordance with Zanett's written wiring instructions.
(d) Warrants. In addition to the Placement Agent Fee, at each
Closing under the Securities Purchase Agreement, the Company shall issue to the
Placement Agent, its affiliates, assigns or designees, warrants (the "Placement
Warrants") in substantially the form of the Warrants (except that the Placement
Warrants will have an exercise price equal to the closing price of the Company's
Common Stock on the date of the First Closing) to purchase such number of shares
of the Company's Common Stock, as is equal to eight percent (8%) of the quotient
obtained by dividing the aggregate Purchase Price of all Preferred Shares and
Warrants issued at such Closing divided by the initial exercise price of the
Placement Warrants. The shares of the Company's Common Stock issuable upon
exercise of the Placement Warrants shall constitute "Registrable Securities"
under the Registration Rights Agreement.
The certificates representing the Placement Warrants
shall be in such denominations as Zanett may request prior to Closing. The
shares of the Company's Common Stock issuable upon exercise of the Placement
Warrants shall herein be referred to as the "Warrant Shares."
(e) Expenses of Offering. The Company shall be responsible for
and shall bear all expenses directly and necessarily incurred by it in
connection with the Offering including, but not limited to, the following:
filing fees, registrar and transfer agent fees, investigatory fees (including,
but not limited to travel and lodging expenses), issuer's counsel and accounting
fees, blue sky fees and counsel, if any and issue and transfer taxes, if any. In
the event a Closing does not occur during the Term, the Company shall reimburse
the Placement Agent for its reasonable out-of-pocket expenses incurred in
connection with the Offering (the amount of such reimbursement not to exceed
$17,500).
(f) Lockup. The Company agrees that, during the period
beginning on the date hereof and ending eighteen (18) months following the later
of the date hereof and the date of the first Closing (the "Lock Up Period"), it
will not, without the prior written consent of the Placement Agent, negotiate or
contract with any Investor or any other party introduced to the Company by
Placement Agent to obtain additional equity financing (including debt financing
with an equity component) in any form.
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3. Representations and Warranties and Covenants of the Company.
(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 all reports, schedules, forms, statements and other documents required
to be filed by the Company on or after December 31, 1993 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") (all of the
foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents (other than exhibits)
incorporated by reference therein, being hereinafter referred to as the "SEC
Documents"). As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and, except as set forth in the Offering Documents (including the schedules
thereto) at the time of the first closing thereunder, none of the SEC Documents,
at the time they were filed with the SEC, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of their respective
dates, the financial statements of the Company included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business subsequent to December 31, 1996, and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in such financial statements, which, individually or in the aggregate,
are not material to the financial condition or operating results of the Company.
(c) The Company recognizes and confirms that Zanett (i) is
authorized to assist the Company in the structuring of the Offering 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 legal documentation to prospective
purchasers of the Company's securities in connection with the performance of
Zanett's services hereunder and (ii) does not assume responsibility for the
accuracy or completeness of the SEC Documents or the Offering Materials.
(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
Offering Documents with the same force and effect as if specifically set forth
herein.
(e) In the event any current officer, director, employee,
consultant or other agent ceases, subsequent to the date hereof, to have such
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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. 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. 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. Anything contained herein to the contrary
notwithstanding, Placement Agent's obligations to proceed with the Offering 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 adverse manner and do not fulfill our
expectations, Zanett shall have the sole discretion to review and determine its
continued interest the Offering. Any information included in the Offering
Documents (including the schedules thereto) at the time of the first closing
thereunder shall constitute notification to Zanett hereunder.
(f) The Company shall make available, during regular business
hours, all records and books of account of the Company for inspection by Zanett.
The Company shall permit Zanett, during regular business hours, to inspect its
properties.
(g) The Company has the requisite corporate power and
authority to enter into and perform this Agreement and to issue the Placement
Warrants in accordance with the terms hereof. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby (including without limitation the issuance of the Placement
Warrants and the reservation of the 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.
(h) The Placement Warrants (and the Warrant Shares issuable
upon exercise of the Placement Warrants) are duly authorized and 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 shareholder 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
Certificate 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")). Except as set forth in the Offering
Documents (including the schedules thereto) at the time of the first closing
thereunder, the Company is not in violation of its Certificate of Incorporation
or By-laws and is not in default (and no event has occurred which with notice or
lapse of time of both would put the Company in 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, except for
possible defaults as would not, individually or in the aggregate, have a
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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 require 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 Warrant Shares to
provide for the full exercise of the outstanding Placement Warrants.
(k) The Company shall promptly secure the listing of the
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 Warrant Shares from time to
time issuable upon exercise of the Warrants.
(l) For so long as any Preferred Shares are outstanding, the
Company shall (i) inform Zanett of the time, place and subject matter of any
informal or formal meetings of its Board of Directors (including any executive
or similar committee thereof) at the same time that it provides such information
to its directors entitled to participate in such meeting and (ii) permit Zanett
to designate one individual to attend and participate in each of such meetings.
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).
5. Indemnification and Contribution.
(a) To the extent permitted by law, the Company will
indemnify, hold harmless and defend Zanett and each of its directors, officers,
partners, members, employees, agents and each person who controls Zanett 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: (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 Offering or (ii) any
breach of any of the Company's representations, warranties or covenants
contained herein. The Company 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 expenses incurred by an Indemnified
Person 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
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the Claims were primarily the result of Zanett's gross negligence, wilful
misconduct or violation of any law, regulation or obligation of Zanett under
this Agreement, and (ii) apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the Company,
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 Company under this Section 5, deliver to the Company
a written notice of the commencement thereof, and the Company shall have the
right to participate in, and, to the extent the Company so desires, to assume
control of the defense thereof with counsel mutually satisfactory to the Company
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 Company, if, in the reasonable opinion of counsel retained by the
Indemnified Person, the representation by such counsel of the Indemnified Person
and the Company would be inappropriate due to actual or potential differing
interests between such Indemnified Person and any other party represented by the
Company's counsel in such proceeding. To the extent the Indemnified Persons
retain counsel pursuant to the immediately preceding sentence, the Company shall
pay for only one separate legal counsel for the Indemnified Persons, and such
legal counsel shall be selected by Placement Agent. The failure to deliver
written notice to the Company within a reasonable time of the commencement of
any such action shall not relieve the Company of any liability to the
Indemnified Person under this Section 5, except to the extent that the Company
is actually prejudiced in its ability to defend such action. 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 Company of an
Indemnified Person is prohibited or limited by law or otherwise unavailable in
respect of any Claim, the Company agrees to make the maximum contribution with
respect to any amounts for which it would otherwise be liable under Section 5 to
the fullest extent permitted by law. In this regard, the Company 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 Company, on the one hand, and the Indemnified Person,
on the other, from the structuring and issuance of the securities in the
Offering 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 Company, 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 Company, 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 Company in the Offering or any other financing bears to such
Indemnified Person's compensation. The relative fault of the Company 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 Company, 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.
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(d) The aforesaid indemnity and contribution agreements shall
apply to any related activities engaged in by any Indemnified Person on or after
the date hereof 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 Placement Agent 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 Offering) and
any termination of this Agreement or Placement Agent's engagement hereunder. The
Company agrees to promptly notify Zanett 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.
(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 or
from Zanett's violation of any law, regulation or obligation of Zanett under
this Agreement.
6. Survival of Certain Provisions. The representations, warranties and
covenants provisions contained in Section 3 and Section 5 shall remain operative
and in full force and effect until that date which is three (3) years from the
date hereof regardless of (a) any completion or termination of any financing
contemplated by this Agreement (including the Offering), (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 Warrants.
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. All notices shall be made to the parties at
the addresses designated above or at such other or different addresses which
party may subsequently provided with notice thereof, and, to their respective
legal counsel, as follows:
(i) If to Placement Agent, to
The Zanett Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx Xxxxxxxx
-with a copy to -
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn.: Xxxx X. Xxxxxxxxxx, Esquire
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(ii) If to the Company, to
Network Imaging Corporation
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attn.: President
-with a copy to -
General Counsel's Office
Network Imaging Corporation
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
(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 irrevocably submits to the
exclusive jurisdiction of the Federal and New York state courts located in the
City 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 any
such court. 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 in any such court and any claims that any such suit, action or
proceeding brought in any such court 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 right 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.
(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.
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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,
NETWORK IMAGING CORPORATION
By:
-------------------------
Name:
Title:
Accepted and Agreed to
this 2nd day of July, 1997.
THE ZANETT SECURITIES CORPORATION
By:
-------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
-10-
