9-5-2006
ADVISORY SERVICES AGREEMENT - TERMS
This Agreement is made and entered into as of May 30, 2006 by and
between Narrowstep, Inc. (the "Company") and Xxxxxxxx XxXxxxx Advisors, LLC (the
"Advisor").
1. SERVICES. From time to time upon the Company's request, the Advisor
shall perform for the Company the advisory services listed or described in
Exhibit A: "Scope of Services" attached hereto, as may be amended from time to
time upon the written agreement of the Advisor and the Company (the "Services").
2. STAFFING. The Advisor shall perform the Services through Xxxxx
XxXxxxx of such other personnel as may be designated by the Advisor from time to
time. The Company shall have the right to cause the Advisor to remove from
performing Services to the Company any individual to whom the Company reasonably
objects. The Advisor shall take reasonable and appropriate measures to insure
that the personnel who perform the Services are competent and qualified to do
so.
3. TERM. This Agreement shall commence on the date hereof (the
"Effective Date") and shall continue for a minimum of 120 days from the
Effective Date and shall thereafter terminate on the 30th day after any party
hereto gives notice of the termination of this Agreement.
4. COMPENSATION FOR SERVICES. In consideration of the Services, the
Company shall pay the Advisor as follows:
(a) The Company shall pay the Advisor a monthly fee of $12,600
(or a pro rated portion thereof for partial calendar months) payable in advance
on June 1, 2006 and on the first business day of each calendar month thereafter
during the term hereof.
(b) On the Effective Date, the Company shall issue to the
Advisor 100,000 shares of its common stock (the "Shares"), which shall be
subject to forfeiture as provided herein., at a price equal to the fair market
value on the Effective Date. On the first business day of the calendar month
following the Effective Date, 8,337 shares shall vest and on the first business
day of every calendar month thereafter, an additional 8,333 shares shall vest.
The expiration or termination of this Agreement (other than as a result of an
uncured material breach by the Advisor of the terms hereof) shall not affect the
future vesting of any unvested shares. The Advisor shall not sell or otherwise
transfer or dispose of the Shares prior to the date on which they vest but shall
otherwise be entitled to exercise all of the rights of a holder of the Shares,
including, without limitation, the right to vote and receive dividends, prior to
the time the Shares vest.
(c) The Advisor shall be entitled to receive warrants
("Warrants") to purchase 2,000 shares of common stock (subject to adjustment in
the event of any stock split, reverse stock split, stock dividend or other
similar change in the common stock) for each Day of Service provided by Xxxxx X.
XxXxxxx, subject to a monthly cap of 10,000 shares. A "Day of Service" shall be
defined as any day in which Xx. XxXxxxx attends an in-person meeting (or attends
a telephonic meeting of two hours or more) with the Board or with an executive
officer of the Company and renders Services. The Company acknowledges that the
Advisor shall be entitled to Warrants covering 6,000 shares of common stock for
Days of Service provided by the Advisor
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in March, April and May. Consistent with other similar arrangements of the
Company, the Warrants shall (i) be granted in arrears semiannually promptly
following the filing of the Company's Annual Report on From 10-KSB with the
Securities and Exchange Commission (the "SEC"), and the filing of the Company's
Quarterly Report on Form 10-QSB with the SEC for the second fiscal quarter, (ii)
be exercisable for a period of five years from the date of grant, (iii) have an
exercise price equal to the closing bid price of the common stock on the trading
day immediately preceding the date of grant (subject to adjustment as indicated
above) and (iv) otherwise be in the form customarily used by the Company for
similar arrangements. In the event that Xxxxx XxXxxxx or any other designee of
the Advisor becomes a director of the Company, the Advisor shall no longer be
entitled to receive Warrants for any "Day of Service" to the extent resulting
from Xx. XxXxxxx'x or such other designee's service as a director of the
Company, including his attendance at or participation in a meeting of the
Company's Board of Directors or any committee thereof.
(d) The Advisor represents and warrants that it is an
"accredited investor" as defined under Regulation D of the Securities Act of
1933, as amended (the "Act"). The Advisor acknowledges that the Shares, the
Warrants and the shares of common stock issuable upon exercise of the Warrants
(collectively, the "Securities") have not been registered under the Act, or any
State securities laws and, therefore, may not be resold or transferred by the
Advisor unless they are subsequently registered under the Act and applicable
State securities or "Blue Sky" laws or exemptions from such registration are
available. No sale or other transfer of the Securities may be made without the
Company's consent unless (i) the offer and sale of the Securities has been
registered under the Act and applicable State securities or "Blue Sky" laws, or
(ii) the offer and sale of the Securities is exempt under the Act and such laws
and the Company has received an opinion of counsel (in form and substance
reasonably satisfactory to the Company) to that effect. Further, the Advisor
acknowledges that a legend summarizing the restrictions described above will be
placed on the certificates representing the Securities.
5. REIMBURSEMENT FOR EXPENSES. In addition to payment(s) under Section
4, the Company shall reimburse the Advisor for all reasonable out-of-pocket
expenses incurred by the Advisor in the performance of the Services, including,
but not limited to, expenses for travel, lodging and meals, and other relevant
expenses provided that such expenses have been agreed to by the Company in
advance, and provided further that the Company shall reimburse expenses (in
amounts consistent with the Company's expense reimbursement policy for Directors
and Officers) associated with Xx. XxXxxxx'x 2 Days of Service in March and
April. Payment shall be made within 30 days of the Company receiving the
Advisor's statement of such expenses.
6. CONFIDENTIAL INFORMATION. (a) The Advisor recognizes that during the
course of performing Services hereunder the Advisor will have access to and will
acquire confidential and proprietary information relating to the Company, its
subsidiaries and affiliates (the "Proprietary Information"). The Advisor
acknowledges that the Proprietary Information has been and will continue to be
of critical importance to the business and operations of the Company, its
subsidiaries and affiliates. Accordingly, the Advisor shall use such Proprietary
Information only in connection with the provision of Services hereunder and
shall not, without the express prior written consent of the Company, directly or
indirectly disclose any Proprietary Information to any other person or use any
such Proprietary Information, either directly or indirectly, for his benefit or
for the benefit of any third party. Upon any termination or expiration of this
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Agreement, the Advisor shall return to the Company all Proprietary Information
provided to the Advisor by the Company, its subsidiaries or affiliates and shall
destroy all other Proprietary Information then in his possession or subject to
his control and shall certify such destruction to the Company. Under no
circumstances shall the Advisor retain any copies of materials containing
Proprietary Information, or any documents, notes, memoranda, studies, analyses
or other material reduced to a tangible form containing Proprietary Information.
The Advisor's obligations under this Section 6(a) shall survive any termination
or expiration of this Agreement forever.
(b) The term "Proprietary Information" does not include information
which (i) is or becomes generally available to the public (other than as a
result of a disclosure by the Advisor or a representative of the Advisor), (ii)
becomes available to the Advisor on a non-confidential basis from a source other
than the Company or one of its representatives which the Advisor reasonably
believes is entitled to disclose it, or (iii) was already in the Advisor's
possession on a non-confidential basis prior to its disclosure to the Advisor by
the Company or one of its representatives.
(c) The Advisor acknowledges that, in the event of any breach of this
Section 6 by him, the Company would be irreparably and immediately harmed and
could not be made whole by monetary damages. Accordingly, the Company, in
addition to any other remedy to which it may be entitled, shall be entitled to
temporary, preliminary and permanent injunctive relief to prevent breaches of
the provisions of this Section 6 and to compel specific performance of the
provisions hereof. The Company shall not be required to post a bond or other
security in connection with the granting of any such relief. These remedies
shall not be deemed to be exclusive remedies for a violation of this Agreement
but shall be in addition to all other remedies available to the Company at law
or in equity.
7. INDEMNIFICATION. The Company shall indemnify, defend and hold
harmless the Advisor, its affiliates and independent contractors, and its and
their respective managers, members, directors, officers, employees and agents
(each, an "Indemnified Party") from and against any and all losses, claims,
actions, damages, liabilities, costs and expenses (including reasonable
attorneys' fees) as they accrue (collectively, "Losses") relating to, or arising
from or in connection with, the performance of the Services, except to the
extent such Losses arise from the negligence or willful misconduct of the
Indemnified Party. The provisions of this Section 7 shall survive any
termination or expiration of this Agreement.
8. RELATIONSHIP OF PARTIES. This Agreement does not constitute, and
shall not be construed as constituting, an agency, partnership, or joint venture
relationship between the Company and the Advisor. Neither party shall have the
right to obligate or bind the other party in any manner whatsoever.
9. MISCELLANEOUS. This Agreement shall be construed and governed under
the laws of the State of New Jersey. Except as otherwise provided herein, the
terms and provisions of this Agreement shall constitute the entire agreement
between the parties with respect to its subject matter and shall supersede any
prior agreement. Notices under this Agreement must be in writing and may be
given by any means for which receipt may be verified. This Agreement may be
amended or modified, and any provision hereof may be waived, only by a writing
signed by each of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Narrowstep Inc.
/S/ XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: SVP and Chief Financial
Officer
Xxxxxxxx XxXxxxx Advisors, LLC
/S/ XXXXX X. XXX
Name: Xxxxx X. Xxx
Title: Chief Financial Officer
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EXHIBIT A: Scope of Services
I. M&A STRATEGY
Xxxxxxxx XxXxxxx Advisors will advise in the development of an M&A strategy as
follows:
o Identification of industry dynamics and growth sectors
o Identification of key companies for partnership or acquisition
targets
o Target valuation and preliminary due diligence, however it
being understood that full due diligence will be undertaken by
the Company's duly appointed financial and legal advisors.
o Negotiation assistance and transaction structuring o Financing
options - equity, debt, privatization, divestitures, etc.
II. BANDWIDTH SCALABILITY
Xxxxxxxx XxXxxxx Advisors will advise in the area of procuring and managing
bandwidth as follows:
o Trend analysis for the future direction of the bandwidth
market
o Determination of how and where the Company should scale the
CDN through analysis of
o Bandwidth consumption and 24-month demand forecast -
how much bandwidth customers currently consume by
channel, by customer, by month, by geography and what
is the growth prediction for the next 2 years based
on consumer patterns and Narrowstep's revenue growth
model.
o Bandwidth providers alternatives - large CDNs in
North America and other parts of the world, strategic
relationships with large network operators, peering
relationships, etc,
o Leverage Xxxxxxxx XxXxxxx industry relationships to begin
negotiations for favorable terms, determine partnerships that
may be pooled for enhanced bargaining power, etc.
III. ADVERTISING
Xxxxxxxx XxXxxxx Advisors will advise Narrowstep in the development of a
"go-to-market" advertising strategy for North America:
o Determination of key media buyers for Narrowstep's North
American market
o Leverage relationships to provide "warm" introduction to
agencies and buyers
o Explore and develop partnership model with ad agencies and
media buyers
o Determine "grassroots" methods for tapping niche advertisers
o Assist in the development of a Media Kit for send out to
agencies & media buyers as well as a version for posting on
the Narrowstep website
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o Assist in the development of a tailored "Advertising Toolkit"
for channel operators indicating methods for accessing media
buyers, niche advertisers, Narrowstep media partners, etc.
operators
IV. RECRUITMENT
Xxxxxxxx XxXxxxx Advisors will assist in the recruitment of key personnel as
directed by the Company. Specifically, Xxxxxxxx XxXxxxx Advisors will:
o Review any employee contracts and suggest exit packages for
the release of any employee
o Assist in determining the profile, competencies and necessary
skills for key positions
o Manage the confidential recruiting process for key positions &
assist with the negotiations and preparation of Employment
Agreements for key individuals who will be joining the company
o Prepare communication and talking points for employees, the
public and investor communities to explain any relevant
changes
V. TELECOMMUNICATIONS COMPANY STRATEGY
Xxxxxxxx XxXxxxx Advisors will:
o Work with the company in developing streamlined value
propositions for 5-10 telcos.
o Work in concert with Narrowstep senior management in opening
the doors and pitching services to companies.
VI. Board Advisory Services
Xxxxxxxx XxXxxxx Advisors shall make Xxxxx XxXxxxx available to:
o Provide strategic advice regarding Company operations based on industry
standards and baseline measures
o Provide insight regarding Company performance; propose strategic
solutions to improve performance
o Propose new strategies and ideas to increase shareholder value
o Assist board in considering key decisions - providing scenarios and
options based on key factors
o Help guide and mediate Board actions with respect to organizational
priorities and governance concerns
o Leverage leadership role in industry to promote the Company, and
support the Company in achieving goals.
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