EXHIBIT 1(a)
Xxxx Xxxxxxxx
Xxxxxxxx Capital Investments, Inc.
00000 Xxxx Xxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Dear Xxxx:
This letter, together with Schedules A,
B, C & D, constitutes our agreement (the "Agreement") between Noise Cancellation
Technologies, Inc. ("NCT") and Xxxxxxxx Capital Investments, Inc. ("SCI")
regarding the introduction by SCI of certain persons to NCT for the purpose of
providing capital to NCT for a debenture sale by NCT (the "Financing")
substantially in accordance with the term sheet attached hereto (the "Term
Sheet").
1. NCT hereby appoints SCI and SCI hereby agrees to serve, as NCT's
exclusive agent for the purpose of introducing to NCT persons, groups or
entities (whether or not such persons, groups or entities were previously known
to NCT or previously knew of NCT) that may provide up to $18,000,000 of capital
to NCT in accordance with the terms described on Schedule A hereto, for the
consideration described on Schedule B hereto. The term of this relationship
shall last until 5:00 P.M. Eastern Standard Time on December 16, 1996 (the
"Termination Date").
2. In pursing the activities contemplated under this
Agreement, you and all agents, brokers and other dealers described in paragraph
4 below have not heretofore and will not hereafter engage in any Directed
Selling Effort as defined under Regulation S as promulgated under the United
States Securities Act of 1933, as amended (respectively "Regulation S" and the
"Act") or in any other activity in contravention of the provisions of Regulation
S or the Act.
3. You will exercise your best efforts acting reasonably to
provide introductions to arrange the Funds but assume no responsibility or
liability if the Funds are not arranged before the Termination Date. If you fail
to provide introductions to arrange the Funds before the Termination Date this
Agreement and your rights hereunder shall become null and void and the parties
shall be released from all obligations contracted for hereunder to the same
extent as if this Agreement had not been executed.
4. You may, at your own
expense, use the services of any agents, brokers or other dealers to assist in
arranging the Funds. NCT will not, during the term of this agreement, directly
arrange for funds with Alexander, Wescott and Company without the compensation
to SCI, as agreed upon by the parties.
5. You, acting reasonably, will select an
appropriate escrow agent to carry out the duties required of such in this
transaction at no cost to NCT and NCT will sign an appropriate escrow agreement
in that regard.
6. No modification, variation or amendment of this Agreement and
no waiver of the performance of any of the responsibilities of any of the
parties hereto shall be valid and binding unless such is set forth in writing
and is signed by all parties.
7. Time shall be of the essence in this Agreement,
8. Any notice, demand or other communication required or permitted to
be given to any party to this Agreement shall be in writing and shall be:
(i) personally delivered to such; or
(ii) sent by facsimile transmission or similar
method of communication, charges prepaid.
Any notice, demand of other Communication given pursuant to
subparagraphs (i) and (ii) shall be sent to the intended recipient
at its address as follows:
NCT: Noise Cancellation Technologies, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000)000-0000
Attention. Xxxxxxx X. Xxxxxxx
Chief Financial Officer
With a copy to:
Noise Cancellation Technologies, Inc.
0 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
X.X.X.
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx General Counsel
SCI:
Xxxxxxxx Capital Investments, Inc.
00000 Xxxx Xxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx
With a copy to:
Xxxxxx, Feinblatt,
Rothman, Hoffberger and Xxxxxxxxx, LLC.
Attorneys at Law
The Xxxxxxx Building
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
X.X.X.
Fax: (000) 000-0000
Attention: Abba Xxxxx Xxxxxxxxx
Any notice if delivered in accordance with subparagraph (i), shall be deemed to
have been received on the day of its delivery, and if sent in accordance with
subparagraph (ii) above, shall be deemed to be received on the day following its
transmission.
9. This Agreement constitutes and contains the entire and only agreement among
the parties relating to the matters described herein and supersedes and cancels
any and all previous arrangements and understandings between all or any of the
parties relative hereto. Any and all prior and contemporaneous negotiations,
memoranda or understanding or position, and preliminary drafts and prior
versions of this Agreement, whether signed or unsigned, between the parties
leading up to the execution hereof shall not be used by any party to construe
the terms or affect the validity of this Agreement. There are no
representations, inducements, promises, understandings, conditions or warranties
express, implied or statutory, between the parties other than as expressly set
forth in this Agreement.
10. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
11. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware and of the United States of America.
12. This agreement may be executed in several counterparts, each of which, when
so executed, shall be deemed to be an original and such counterparts together
shall constitute one and the same instrument and also this agreement may be
exchanged between the parties by facsimile.
13. NCT shall indemnify and hold harmless SCI against any lawsuits, actions,
proceedings, claims, damages, liabilities, costs and expenses, including
attorneys' fees, expert fees, costs of investigation and preparation of any
defense, and sums expended in settlement of any of the foregoing, arising out
of, in connection with or relating to any action or omission of NCT in
connection with any transaction entered into with or through SCI or Alexander,
Wescott & Co., Inc. under this letter agreement including those arising out of
any untrue or alleged untrue statement of a material fact. The obligations of
NCT under this paragraph shall survive any termination of this letter agreement.
Kindly acknowledge your agreement with the foregoing by signing a copy of this
letter in the space below and returning it to NCT as provided above.
Very truly yours,
NOISE CANCELLATION TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Senior Vice President
Chief Financial Officer
Accepted and Agreed:
XXXXXXXX CAPITAL INVESTMENTS, INC.
By: /s/ XXXX XXXXXXXX
Xxxx Xxxxxxxx
President
Attached: Schedule A Term Sheet
Schedule B Fees payable
Schedule C Representations & Warranties
Schedule D Additional Financing
