AGREEMENT
This Agreement is by and between Merlin Software Technologies International
Inc., a company incorporated pursuant to the laws of the State of Nevada, of
3675 Pecos-XxXxxx, Suite 1400, Las Vegas, Nevada (the "Company") and X.X. Xxxx &
Co., LLC, a Connecticut Limited Liability Company, Greenwich, Connecticut (the
"Consultant").
1. Engagement
(a) Consultant will assist Company in coordinating the process to raise
approximately $5 Million.
(b) Consultant will work with the Company as follows:
(1) continue to work closely with Xxxxxxx Xxxxx as Company prepares to
move to NASDAQ.
(2) to develop closer ties with the institutions and large individual
investors.
(3) establish closer ties with Investment Bankers/Brokerage.
(4) to help coordinate the administrative/legal process of moving to a
NASDAQ listing.
2. Compensation
(a) For the year 2000, Consultant will receive payment of $100,000.00
and 300,000.00 shares in the capital of the Company (zero basis). In addition,
Consultant will receive 100,000 shares (zero basis) in capital of the Company at
the time of the NASDAQ listing. This remuneration will be paid and delivered on
or before the closing of the offering (i.e. on or about July 3, 2000).
(b) In year 2001, for providing services only and in addition to other
compensation as set forth herein, Consultant will receive $130,000.00 on January
1, 2001 and $100,000 in 11 equal monthly installments commencing February 1,
2001. The above payment schedule shall be accelerated, and all payments then
due hereunder shall be immediately payable, in the event that either Xxxx Xxxxxx
or Xxx Xxxxxx resigns from his position as an officer or director of the
Company, prior to such time as the Company has hired a Chief Executive Officer,
Chief Operating Officer, and Chief Marketing Officer.
(c) Reimbursement of Expenses
(1) Until funds are raised, expenses will be limited to travel.
(2) Afterwards, Company will reimburse Consultant, at Consultant's cost,
for reasonable and necessary out-of-pocket expenses incurred by Consultant in
performing service for Company.
(3) With respect to additional financing requirements, Company shall
give Consultant the right of first refusal to raise such capital in
consideration of a commission of five (5%) percent of such capital in cash, and
five (5%) percent in stock.
For one (1) year after the Effective Date as defined in the Merlin Software
Technologies, Inc., Proposed Financing, Convertible Secured Debentures, Summary
of Terms (the "Summary"), in the event that Narragansett Asset Management
Company (Narragansett) exercises its Right of First Refusal as defined in the
Summary, Consultant will only advise the Company regarding further equity based
financings that are consummated with a strategic business partner. Prior to the
Effective Date, and in the event that Narragansett exercises its right of First
Refusal, at any time subsequent to one (1) year after the Effective Date,
Consultant will advise the Company regarding financing regardless of the source.
If Narragansett does not exercise its Right of First Refusal, Consultant will
advise the Company regarding financing regardless of the source, at any time.
3. Term and Termination. The term of this Agreement shall commence on June
20, 2000 and continue until June 30, 2002. Subsequent to June 30, 2002, either
party may terminate this Agreement on thirty (30) days advance written notice to
the other. Notwithstanding the foregoing, Consultant shall be entitled to
receive compensation as set forth in paragraphs 2(a) and (b) above should an
investor which Consultant introduced to the Company during the term of this
Agreement provide any form of financing to the Company in connection with a
company project subsequent to the termination of this Agreement. Upon
termination of this Agreement, Consultant will provide the Company with a list
of parties whom Consultant has introduced to the Company.
4. Exclusion.
This Contract does not include the potential IBM Agreement.
5. Information.
The Company shall furnish to Consultant all information concerning the
Company, which Consultant reasonably requests and shall provide Consultant with
reasonable access to its officers, directors, employees, counsel and independent
auditors and to their records.
The Company represents and warrants to Consultant that:
(a) In all material respects the information furnished will contain no
untrue statement of a material fact and will not omit any material fact
necessary to make the statements therein not misleading; and
(b) All expressions of opinion, intention and expectation expressed therein
will be fair and honest in all material respects.
6. Confidentiality.
In performing this engagement, Consultant shall be required to have access
to sensitive information, records, trade secrets, lists, and data belonging to
the Company and used in the course of the Company's business. Consultant agrees
that all such information which is marked "Confidential" in writing and not
generally known or previously known to Consultant is confidential in nature, and
Consultant will not directly or indirectly disclose, publish, or use any such
information without the Company's prior written consent. Consultant is
responsible for assuring that any personnel employed by it on the engagement
shall similarly protect the confidentiality of any such information. Any such
information and all copies thereof in Consultant's custody during the term of
this Agreement shall be returned to the Company immediately upon the termination
or expiration of this Agreement.
7. Exculpation.
In the absence of willful misfeasance, gross negligence, or reckless
disregard of its obligations or duties hereunder on the part of Consultant,
neither Consultant nor any officer, director, employee, or stockholder of
Consultant shall be subject to any liability to the company or to any officer,
director, employee, or stockholder of the Company, for any act or omission in
the course of, or in connection with, the rendering or providing of services or
advice hereunder.
8. Limitations Upon the Use of Advice and Services.
No person or entity, other than the Company shall be entitled to make use
of, or rely upon, the advice or services of Consultant to be given hereunder,
and the Company shall use its best efforts to prevent the transmission of such
advice to, or the use of, or reliance upon such advice or services by others.
9. Miscellaneous.
(a) No Agency. For the purposes of our relationship, Consultant shall
be deemed to be acting as an independent contractor. Consultant will not hold
itself out or act as agent for the Company or contract any debt or obligation in
the Company's name without the Company's written consent.
(b) Assignment. Consultant may not assign its right or obligations under
this Agreement to any person without the written consent of the Company.
Company may assign its rights and obligations under this Agreement to any entity
under its control and is to receive the investments contemplated hereunder, and
such assignment shall be considered a novation such that the assignee shall be
deemed the "Company" under this Agreement. No provision of this Agreement or
any offering contemplated hereunder is intended to give Consultant or any
investor any direct or indirect interest or fee with respect to the assets,
rights or goodwill of the Company.
(c) Notices. All notices required or permitted hereunder shall be in
writing and shall be given by registered or certified mail, return receipt
requested, personal delivery, overnight delivery by reputable courier, or via
facsimile with a copy thereof mailed to the addressee. Notices shall be
delivered to the respective party at his or its address as shown herein,
or to such other address as either party may hereafter fix by notice. All
such notices shall be deemed given when received.
(d) Governing Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of Connecticut.
(e) Entire Agreement - No Oral Modifications. This is our entire Agreement
relating to this engagement other than as expressly set forth herein and
supersedes any previous Agreements we may have. It may be changed only in
writing signed by both of us.
(f) Authority. This Agreement may be executed via facsimile, with the
deliver of facsimile signature deemed to be delivery of an original signature.
This Agreement has in all respects been duly authorized, executed, and delivered
by and on behalf of the Company and Consultant.
* * * * *
In witness whereof the undersigned hereby execute this Agreement as of the dates
indicated below.
MERLIN SOFTWARE TECHNOLOGIES INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxx Date: 6 / 28 / 2000
-------------------
Xxxxxx Xxxxxx
X.X. XXXX & COMPANY, LLC
By: /s/ E. Xxxxxxx Xxxx Date: 6 /28 / 2000
----------------------
E. Xxxxxxx Xxxx
