XXXXXX SECURITIES, INC.
0000 XXXXXXX XXXXXXXX
XXXXXXX, XXX XXXX 000000
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FORM OF MERGER, ACQUISITION AND
OTHER BUSINESS ARRANGEMENT
AGREEMENT
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_________________ ___, 2004
Fusion Telecommunications International, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Chief Executive Officer
Gentlemen:
This is to confirm our agreement whereby Fusion Telecommunications
International, Inc. ("Company") will compensate Xxxxxx Securities, Inc.
("Xxxxxx") if the Company engages in transactions with persons introduced to it
by Xxxxxx:
1. AGREEMENT REGARDING MERGERS, ACQUISITIONS AND OTHER BUSINESS
ARRANGEMENTS
(a) In the event that any acquisition of and/or merger with
other companies or joint ventures or other transaction with any third parties
including, without limitation, (i) the sale of the business, assets or stock of
the Company or any its subsidiaries or affiliates or any significant portion
thereof, (ii) the purchase of the business, assets or stock of a third party or
any significant portion thereof or (iii) entering into a commercial relationship
with a third party not involving a transaction of the type referred to in
clauses (i) or (ii) (collectively, a "Transaction"), occur which result from or
are caused by introductions made by Xxxxxx within twelve (12) months prior
thereto, the Company shall pay Xxxxxx 5% of Legal Consideration paid in any such
Transaction.
For purposes of this Agreement, the phrase "Legal
Consideration" shall mean the total value of the securities (valued as
determined in the applicable agreement governing the terms of the Transaction
or, if not so valued, at market on the day of closing, or if there is no public
market, valued as set forth herein for other property), cash and assets and
property or other benefits (including assumption, defeasance or repayment of
debt and other obligations) exchanged or received by the Company or its
shareholders as consideration as a result of or arising out of the Transaction,
irrespective of the period of
payment or terms (all valued at fair market present value as agreed or, if not,
by an independent appraiser selected by the Company in good faith).
(b) All fees payable under this Section 1 are due and payable
to Xxxxxx, in cash or by certified check, at the closing or closings of any
Transaction; provided, that if the Legal Consideration on any Transaction is
other than all cash, the payment to Xxxxxx shall be, at the option of the
Company, either the cash equivalent or such other consideration proportionate
with the types of Legal Consideration paid on such Transaction; and PROVIDED,
HOWEVER, that if any Legal Consideration is to be paid or received at a future
date or is contingent upon a future event, the related fees shall be due and
payable on the business day after receipt or payment by the Company. No fees
shall be payable under this Section 1 or otherwise if, for any reason, the
Transaction is not consummated.
2. TERM OF AGREEMENT
This Agreement shall be for a term of three years from the date hereof.
3. EXPENSES
Xxxxxx shall bear all costs and expenses incurred by Xxxxxx directly in
connection with the introduction or attempted introduction(s) made by Xxxxxx in
connection with Transactions and otherwise in connection with the performance of
its services hereunder, unless otherwise agreed to by the Company.
4. USE OF NAME AND REPORTS
Use of Xxxxxx'x name in annual reports or any other reports of the
Company or press releases issued by the Company shall require the prior written
approval of Xxxxxx, which shall not be unreasonably withheld or delayed.
5. STATUS AS INDEPENDENT CONTRACTOR
Xxxxxx shall perform its services as an independent contractor and not
as an employee of the Company or affiliate thereof. It is expressly understood
and agreed to by the parties that Xxxxxx, and any individual or entity that
Xxxxxx shall employ in order to perform its services hereunder, shall have no
authority to act for, represent or bind the Company or any affiliate thereof in
any manner, except as may be expressly agreed to by the Company in writing from
time to time.
6. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, with respect thereto. This Agreement may
not be modified or terminated orally or in any manner other than by an agreement
in writing signed by the parties hereto.
7. NOTICES
Any notices required or permitted to be given hereunder shall be in
writing and shall be deemed given when mailed by certified mail or private
courier service, return receipt requested, addressed to each
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party at its respective addresses set forth above, or such other address as may
be given by either party in a notice given pursuant to this Section 7.
8. SUCCESSORS AND ASSIGNS
This Agreement may not be assigned by either party without the written
consent of the other. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and, except where prohibited, to their
successors and assigns.
9. NON-EXCLUSIVITY
Nothing herein shall be deemed to restrict or prohibit the engagement
by the Company of other
consultants providing the same or similar services or the payment by the Company
of fees to such parties.
10. APPLICABLE LAW
This Agreement shall be construed and enforced in accordance with the
laws of the State of New York without giving effect to conflict of laws.
11. ARBITRATION
In the event of any dispute under this Agreement, then and in such
event, each party hereto agrees that the dispute shall be submitted to the
American Arbitration Association in New York County, New York, for its decision
and determination in accordance with its rules and regulations then in effect.
Each of the parties agrees that the decision and/or award made by the
Association may be entered as judgment of the courts of the State of New York,
as shall be enforceable as such.
If the foregoing correctly sets forth the understanding between Xxxxxx
and the Company with respect to the foregoing, please so indicate your agreement
by signing in the place provided below, at which time this letter shall become a
binding contract.
XXXXXX SECURITIES, INC.
By:
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Name: Xxxxx X. Xxxxxxx
Title: Co-Chief Executive Officer
AGREED AND ACCEPTED BY:
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:
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Name: Xxxxxx: X. Xxxxx
Title: Chief Executive Officer
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