Exhibit 10.3
[Xxxxx Xxxxxx letterhead]
March 13, 2001
Xxxx Xxxxxxxxx
President
Integrated Spatial Information Solutions, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Gentlemen:
This Letter Agreement ("Agreement") will confirm the understanding between
Integrated Spatial Information Solutions, Inc. (the "Company" or "ISIS"), and
Xxxxx Xxxxxx & Co., Inc. ("BMCI").
Commencing February 26, 2001 and through the period ending December 31, 2001,
the Company retains BMCI and BMCI agrees to perform such financial advisory
services on matters relating to corporate finance and recapitalization and more
specifically, related to the development and execution of a rights offering of
ISIS common stock. ISIS or BMCI may terminate this Agreement upon thirty days'
written notice subsequent to a rights' offering or other recapitalization event
as anticipated by this Agreement.
It is anticipated that, at various points in time, the Company may request that
BMCI perform a specific financial advisory service or services, which may
include written advice in the format generally referred to as "Fairness
Opinions." In each such case, a separate agreement will be negotiated which will
set forth the services which the Company desires BMCI to render, which agreement
will establish the fees payable to BMCI for such services. The teams assembled
by BMCI will include such members of BMCI's corporate finance and research staff
as may be required given the nature of the particular transaction.
BMCI shall perform such services as an independent contractor and not as an
employee of ISIS. As such, BMCI shall not be entitled to or claim any benefits
or right accorded to the employees of ISIS.
In consideration of the performance by BMCI of such services, and in lieu of
BMCI's normal annual retainer, the Company will issue to BMCI or its designees
upon closing of a recapitalization event or concurrent with a rights offering,
warrants, in the form annexed as Appendix A to this agreement, to purchase 2% of
the common shares outstanding after the rights offering, but without reference
to any rights which will be offered to Crossways Consulting Group for various
services rendered. The warrants issued to BMCI will expire five years after the
date of issuance and will be exercisable at a price of equal to 110% of the
exercise price of the rights or a 10% premium to the per share investment price
of a recapitalization event. In light of paragraph 1(b) of Appendix "A," BMCI
will not receive any demand registration rights, but the Company will grant to
BMCI rights to two "piggyback" registrations with respect to offerings of shares
issued upon exercise of Warrants. The aforementioned registrations will be at
the expense of the Company.
The Company will reimburse BMCI for all out-of-pocket expenses incurred in
carrying out the terms of this Agreement, provided that any single out-of-pocket
expense in excess of $500 will be submitted for prior approval by the Company.
The Company agrees to indemnify and hold BMCI, its affiliates, control persons,
officers, employees and agents (each an "Indemnified Person") harmless from and
against all losses, claims, damages, liabilities, costs or expenses according to
the terms and conditions specified in Appendix B.
Any information obtained by the parties from each other in the course of
performing this Agreement, which is of proprietary nature and is not publicly
available shall be kept confidential and not released by the receiving party
without the consent of the other party. The receiving party agrees to handle
such proprietary information with the same degree of care as it uses to handle
its own proprietary information.
This Letter Agreement shall be governed by the laws of the State of New York
governing contracts made and to be performed in such state without giving effect
to the principles of conflicts of laws.
If any provision of this Agreement is found to be void, the remainder of the
Agreement shall remain in full force and shall not thereby be terminated.
This Letter Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof and supersedes and cancels any prior
communications, understandings and agreements between the parties. Neither this
Letter Agreement nor its substance shall be disclosed except to those who are in
a confidential relationship with the Company or where the same is required by
law. This Letter Agreement may not be amended, nor may any of its provisions be
waived, except by written agreement signed by both parties. This Letter
Agreement shall be binding upon and inure to the benefit of any successors and
assigns of the Company and Xxxxx Xxxxxx.
If the foregoing accurately reflects your understanding of the Agreement between
the Company and BMCI, please so indicate by signing the enclosed copy of this
letter in the space provided and return same to us, together with the duly
executed Indemnification Agreement.
Very truly yours,
By: /s/ Xxxx X. Xxxxx, III
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Xxxx X. Xxxxx, III
Managing Director
Accepted and Agreed to as of
the date first written above:
Integrated Spatial Information Solutions, Inc.
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxx
President
Exhibit B
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INDEMNIFICATION AGREEMENT
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Indemnification agreement dated as of March 13, 2001 by and between
Integrated Spatial Information Solutions, Inc. (the "Company") and Xxxxx Xxxxxx
& Co., Inc. ("BMCI").
The Company agrees to indemnify and hold BMCI and its affiliates, control
persons, directors, officers, employees and agents (each an "Indemnified
Person") harmless from and against all loses, claims, damages, liabilities,
costs or expenses, including those resulting from any threatened or pending
investigation, action, proceeding or dispute whether or not BMCI or any such
other Indemnified Person is a party to such investigation, action, proceeding or
dispute, arising out of BMCI's entering into or performing services under this
Agreement, or arising out of any matter referred to in this Agreement. This
indemnity shall also include BMCI's and/or any such other Indemnified Person's
reasonable attorney's and accountants' fees and out-of-pocket expenses incurred
in, and the cost of BMCI's personnel whose time is spent in connection with,
such investigations, actions, proceedings or disputes which fees, expenses and
costs shall be periodically reimbursed to BMCI and/or to any such other
Indemnified Person by the Company as they are incurred; provided, however, that
the indemnity herein set forth shall not apply where a court of competent
jurisdiction has made a final determination that BMCI acted in a grossly
negligent manner or engaged in willful misconduct in the performance of its
services hereunder which gave rise to the lose, claim, damage, liability, cost
or expenses sought to be recovered hereunder (but pending any such final
determination the indemnification and reimbursement provisions hereinabove set
forth shall apply and the Company shall perform its obligations hereunder to
reimburse BMCI and/or they are incurred). The Company also agrees that neither
BMCI nor any Indemnified Person shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to the Company for or in connection
with any act or omission to act by BMCI as a result of its engagement under this
Agreement except for any such liability for losses, claims, damages, liabilities
or expenses incurred by the Company that is found in a final determination by a
court of competent jurisdiction to have resulted from BMCI's gross negligence or
willful misconduct.
If for any reason, the foregoing indemnification is unavailable to BMCI or
any such other Indemnified Person or insufficient to hold it harmless, then the
Company shall contribute to the amount paid or payable by BMCI or any such other
Indemnified Person as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Company and its shareholders on the one hand and BMCI or any such other
Indemnified Person on the other hand, but also the relative fault of the Company
and BMCI or any such other Indemnified Person, as well as any relevant equitable
considerations; provide that in no event will the aggregate contribution by BMCI
and any such other Indemnified Person hereunder exceed the amount of fees
actually received by BMCI pursuant to this Agreement.
The reimbursement, indemnity and contribution obligations of the Company
hereinabove set forth shall be in addition to any liability which the Company
may otherwise have and these obligations and the other provisions hereinabove
set forth shall be binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the Company, BMCI and any other
Indemnified Person.
The terms and conditions hereinabove set forth in this Appendix B shall
survive the termination and expiration of this Agreement and shall continue
indefinitely thereafter.
Integrated Spatial Information Solutions, Inc.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
President
Xxxxx Xxxxxx & Co., Inc.
By: /s/ Xxxx X. Xxxxx, III
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Xxxx X. Xxxxx, III
Managing Director
