Exhibit 10.2
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AGREEMENT
AGREEMENT, dated as of March 6, 1997, between JERICHO
STATE CAPITAL CORP. OF FLORIDA ("JSCCF"), a Florida corporation,
and TOUCHSTONE APPLIED SCIENCE ASSOCIATES, INC. ("TASA"), a
Delaware corporation.
W I T N E S S E T H :
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WHEREAS, TASA agrees to retain JSCCF to act as its
investment banker and financial consultant in connection with
TASA's business affairs and JSCCF is willing to undertake to
provide such services as hereinafter fully set forth.
NOW, THEREFORE, in consideration of the premises
contained herein, the parties agree as follows:
1. Term.
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The term of this Agreement shall be for one (1) year
from the date first written above, which term shall be renewed
automatically for additional one-year terms, unless written
notice to terminate service is received by one party from the
other not less than 30 days before the then expiration of then
applicable term. This Agreement may be canceled at any time for
any reason whatsoever, by either party, by the giving of at least
30 days' prior written notice.
2. Nature of Services.
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JSCCF will render assistance and advice to TASA on
matters relating to the growth and financing goals of TASA and in
connection therewith, JSCCF shall:
(a) seek to find strategic partners and/or financing
entities to assist TASA in its projects;
(b) attend meetings of TASA's Board of Directors and
other such meetings when so requested by TASA;
(c) make itself available for financial public
relations and marketing consulting;
(d) arrange introductions to various broker/dealers
who may be interested in knowing more about TASA,
including its goals and aspirations;
(e) attend with TASA whenever possible, all meetings
with proposed major investors or lenders; and
(f) an understanding that JSCCF's work will not
include any services that constitute the rendering
of any legal opinions or performance of work that
is in the ordinary purview of a certified public
accountant.
3. Responsibilities of TASA.
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TASA shall provide JSCCF with appropriate financial and
business information about TASA as requested by JSCCF. In
addition, executive officers and directors of TASA shall make
themselves available for personal consultations with JSCCF and
certain third parties, subject to reasonable prior notice,
pursuant to the request of JSCCF.
4. Compensation.
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JSCCF's fees for the above described services will be
as follows:
(a) TASA shall issue one or more Warrants to JSCCF
providing for the purchase of up to Two Hundred
Fifty Thousand (250,000) shares of TASA's common
stock at a purchase price per share equal to the
closing bid price of TASA's common stock on the
date of this Agreement. Such Warrants shall be
exercisable for a period of five (5) years from
the date first written above (the "JSCCF
Warrants").
(b) The Warrants may be exercised from time to time,
in whole or in part, by the Warrant holder by
giving written notice to TASA. Such notice shall
specify the number of shares of common stock with
respect to which the Warrants are then being
exercised. Payment of such shares shall be made
by cash or check payable to TASA either (A)
accompanying the notice of exercise, or (B)
against delivery by TASA of the certificate(s)
representing the shares pursuant to the exercise.
(c) If at any time commencing after the date hereof
and expiring five (5) years thereafter, TASA
proposes to register any of its securities under
the Securities Act of 1933, as amended, it will
give written notice by registered mail, at least
thirty (30) days prior to the filing each of such
registration statements, to JSCCF and its counsel.
If JSCCF or other holders of at least 50% of the
outstanding JSCCF Warrants and/or securities
underlying JSCCF Warrants notify TASA within
twenty (20) days after receipt of any such notice
of its or their desire to include any such
securities in such proposed registration
statement, TASA shall afford JSCCF and such
holders of JSCCF Warrants and/o shares underlying
such JSCCF Warrants the opportunity to have any
such securities registered under such registration
statement; provided, however, that TASA shall not
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be obligated to do so more than twice; and
provided, further, that if any such registration
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relates to a firmly underwritten offering for the
account of TASA and if the managing underwriter of
such offering advises TASA in writing that, in its
opinion, inclusion of such shares as requested by
JSCCF or the other holders of the JSCCF Warrants
would adversely affect such offering, then such
shares shall, to such extent, be excluded from
such registration, on such basis as TASA shall
determine to be fair and equitable.
(d) In the event that TASA receives equity or debt
financing, acquires or merges with another entity,
as a result of JSCCF's efforts and/or
introductions, TASA will pay JSCCF the following
finders fee: 5% of the first $1,000,000; 4% of the
second $1,000,000; 3% of the third $1,000,000; 2%
of the fourth $1,000,000 and 1% of any
remuneration received in excess of $4,000,000,
whether received in cash or in kind. TASA's
obligation to pay compensation pursuant to this
paragraph (d) shall apply to any transaction
resulting from JSCCF's efforts or introductions
which is consummated during the term of this
Agreement or within twelve (12) months following
the termination of this Agreement. TASA shall not
be obligated to compensate JSCCF in accordance
with this paragraph (d) which is not consummated
because of default by the other party thereto
prior to consummation, the failure of any
conditions precedent to consummation which
conditions are not within TASA's control, the
failure of the Board of Directors of TASA to
approve such transaction or unsatisfactory results
of a due diligence investigation by TASA. JSCCF
shall not be entitled to compensation with respect
to introductions to individuals, companies or
other entities with whom TASA has had previous
contacts or discussions. JSCCF acknowledges and
agrees that if TASA receives equity or debt
financing, acquires or merges with another entity
as a result of joint efforts between JSCCF and
Xxxxxx Xxxxxxx Xxxxxxx, Inc., then TASA shall not
be required to pay duplicative fees to JSCCF and
Xxxxxx Xxxxxxx Xxxxxxx, Inc., and any fees payable
by TASA pursuant to this Section shall be shared
by JSCCF and Xxxxxx Xxxxxxx Xxxxxxx, Inc. in such
proportions as JSCCF and Xxxxxx Xxxxxxx Xxxxxxx,
Inc. shall agree and shall direct TASA in writing.
(e) JSCCF will be reimbursed for all documented
reasonable out-of-pocket expenses incurred in the
performance of its responsibilities outlined
above. All expenses over $500.00 will be pre-approved
by TASA.
5. Indemnification.
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(a) TASA shall indemnify JSCCF and its affiliates and
their respective directors, officers, employees, agents and
controlling persons (JSCCF and each such other person and
entity being an "Indemnified Party" for purposes of this
Section) from and against any and all losses, claims,
damages and liabilities, jointly or severally, to which such
Indemnified Party may become subject under any applicable
federal or state law, or otherwise related to or arising out
of any transaction contemplated by this Agreement and the
performance by JSCCF of the services contemplated by this
Agreement, and shall reimburse each Indemnified Party for
all reasonable expenses (including reasonable counsel fees
and expenses) as they are incurred in connection with the
investigation of, preparation for or defense of, any pending
or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party
thereto provided that TASA shall not be liable for any of
the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Indemnified Party
and further provided that such Indemnified Party agrees to
refund such reimbursed expenses if and to the extent it is
finally judicially determined that such Indemnified Party is
not entitled to indemnification. In the event that the
foregoing indemnity is unavailable or insufficient to hold
any Indemnified Party harmless, then TASA shall contribute
to amounts paid or payable by such Indemnified Party in
respect of such losses, claims, damages and liabilities in
such proportion as approximately reflects the relative
benefits received by, in fault of, TASA and such Indemnified
Party in connection with the matters as to which such
losses, claims, damages and liabilities relate and other
equitable considerations, provided however that nothing in
this sentence shall be construed as altering or limiting in
any way the effect of the proviso contained in the
immediately preceding sentence.
(b) JSCCF shall indemnify TASA and its affiliates and
their respective directors, officers, employees, agents and
controlling persons (TASA and each such other person and
entity being an "Indemnified Party" for purposes of this
Section) from and against any and all losses, claims,
damages and liabilities, jointly or severally, to which such
Indemnified Party may become subject under any applicable
federal or state law, or otherwise related to or arising out
of any transaction contemplated by this Agreement and the
performance by TASA of its obligations contemplated by this
Agreement, and shall reimburse each Indemnified Party for
all reasonable expenses (including reasonable counsel fees
and expenses) as they are incurred in connection with the
investigation, preparation for or defense of any pending or
threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party
thereto provided that JSCCF shall not be liable for any of
the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Indemnified Party
and further provided that such Indemnified Party agrees to
refund such reimbursed expenses if and to the extent it is
finally judicially determined that such Indemnified Party is
not entitled to indemnification. In the event that the
foregoing indemnity is unavailable or insufficient to hold
any Indemnified Party harmless, then JSCCF shall contribute
to amounts paid or payable by such Indemnified Party in
respect of such losses, claims, damages and liabilities in
such proportion as approximately reflects the relative
benefits received by, in fault of, JSCCF and such
Indemnified Party in connection with the matters as to which
such losses, claims, damages and liabilities relate and
other equitable considerations, provided however that
nothing in this sentence shall be construed as altering or
limiting in any way the effect of the proviso contained in
the immediately preceding sentence.
6. Complete Agreement. This Agreement contains the
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entire Agreement between the parties with respect to the contents
hereof and supersedes all prior agreements and understandings
between the parties with respect to such matters, whether written
or oral. Neither this Agreement, nor any term or provision
hereof may be changed, waived, discharged or amended in any
manner other than by an instrument in writing, signed by the
party against which the enforcement of the change, waiver,
discharge or amendment is sought.
7. Binding Effect; Assignment. This Agreement shall
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be binding upon the parties hereto, their heirs, legal
representatives, successors, and assigns and shall not be
assignable by either party, except under prior written consent by
both parties to this Agreement
8. Relationship of the Parties.
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(a) Nothing in this Agreement shall be construed as
establishing a partnership or joint venture between the
parties hereto. TASA specifically understands that JSCCF is
acting hereunder as an independent contractor. JSCCF's
services hereunder are not exclusive and JSCCF at all times
shall be free to perform the same or similar services for
others which shall not be deemed a conflict of interest nor
a breach of this Agreement, however JSCCF agrees not to
perform the same or similar services for any company which
is in direct competition with TASA.
(b) TASA acknowledges that neither JSCCF nor any of
its affiliates is an officer, director or agent of TASA,
that in rendering advice or recommendations to TASA, JSCCF
is not and will not be responsible for any management
decisions on behalf of TASA. JSCCF acknowledges and agrees
that JSCCF is not authorized or empowered to commit or bind
TASA to any recommendation, agreement or course of action.
TASA has the sole right, in the exercise of its business
judgment and discretion, to approve or disapprove of any
agreement, transaction or commitment introduced by JSCCF.
9. Disclosure. Any financial advice rendered by JSCCF
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pursuant to this Agreement may not be disclosed publicly in any
manner without the prior written approval of JSCCF. All non-public
information given to JSCCF by TASA will be treated by
JSCCF as confidential information, and JSCCF agrees not to make
use of such information other than in connection with its
performance of this Agreement, provided, however, that any such
information may be disclosed if required by any court or
governmental or regulatory authority, board or agency. "Non-public
information" shall not include any information which (i)
is or becomes generally available to the public other than as a
result of a disclosure by JSCCF; (ii) was available to JSCCF
prior to its disclosure to JSCCF by TASA, provided that such
information is not known by JSCCF to be subject to another
confidentiality agreement with another party; or (iii) becomes
available to JSCCF on a non-confidential basis from a source
other than TASA, provided that such source is not bound by a
confidentiality agreement with TASA.
10. Miscellaneous.
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(a) All final decisions with respect to consultation,
advice and services rendered by JSCCF to TASA shall rest
exclusively with TASA and JSCCF shall not have any right or
authority to bind TASA to any obligation or commitment.
(b) This Agreement shall be governed in accordance
with the State of New York.
(c) Any controversy or claim arising out of or related
to this Agreement shall be settled by arbitration in
accordance with the rules and under the auspices of the
American Arbitration Association; and any arbitration shall
be conducted in the County of New York in the State of New
York.
TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
President
JERICHO STATE CAPITAL CORP.
OF FLORIDA
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
President