EXHIBIT 10.62
INVESTMENT BANKING AGREEMENT
This Agreement is made and entered into as of the 1st day of June 2001,
between Heartsoft, Inc. (the "Company") and First Avantus Securities, Inc.
(the "Consultant").
WITNESSETH:
WHEREAS, The Company is a public company and its securities are traded in the
over-the-counter market; and
WHEREAS, Consultant has experience in providing financial and business advice
to public and private companies; and
WHEREAS, the Company is seeking and Consultant is willing to furnish business
and financial related advice and services to the Company on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of, and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties agree as follows:
1) DUTIES OF CONSULTANT
a) Consultant represents and warrants to the Company that (i) it is a
member in good standing of the National Association of Securities Dealers,
Inc. ("NASD) and that it is engaged in the securities brokerage business; (ii)
in addition to its securities brokerage business, Consultant provides
consulting advisory services; and (iii) it is free to enter into this
Agreement are not in conflict with any other contractual or other obligation
to which Consultant is bound. The Company acknowledges that the Consultant is
in the business of providing financial services and consulting advice (of the
type contemplated by this Agreement) to others. Nothing herein contained shall
be constructed to limit or restrict the Consultant in conducting such business
with respect to others, or rendering such advice to others.
b) During the term of this Agreement, the Consultant will provide the
Company with consulting advice as specified below, provided that the
Consultant shall not be required to undertake duties not reasonable within the
scope of the consulting advisory service in which Consultant is engaged
generally. In performance of these duties, the Consultant shall provide the
Company with the benefits of their best judgment and efforts. It is understood
and acknowledged by the parties that the value of the Consultant's advice is
not measurable in any quantitative manner, and that the amount of time spent
rendering such consulting advice shall be determined according to the
Consultant's discretion.
c) Subject to market conditions, the Consultant's duties, on a best
efforts basis only, may include, but will not necessarily be limited to:
(1) Recommendations relating to specific business operations and
investments;
(2) Advice relating to financial planning
(3) Create a wider awareness of the Company by, among other
things, introducing Company to Broker-Dealers, IR/PR
consulting firms, fund managers, and institutional investors.
(4) The set up and coordination of road shows and investor
conferences at the Company's sole expense
2) TERM
The term of this Agreement shall be for one (1) year commencing as of the
execution of this Agreement ("Commencement Date"); provided, however, that
this Agreement may be renewed or extended upon such terms and conditions as
may be mutually agreed upon by the parties hereto.
3) PURCHASE OF STOCK
As part of this Agreement, the Company shall sell to the Consultant
or its designees shares of the Company's Common Stock ("Shares") at
$.001 per share.
The Shares shall be free and clear of all liens, pledges, charges,
restrictions, claims or encumbrances, and upon delivery of the certificate (s)
evidencing the Shares, the Consultant or its designee (s) will acquire good
and marketable title to the Shares, free and clear of all liens, pledges,
charges, claims, restrictions and encumbrances, except that such Shares shall
be "restricted" Common Stock within the meaning of the Securities Act of 1933
(the "Act").
The Consultant acknowledges that the certificate (s) for the Shares
will be legended to indicate that the Shares represented thereby have not
registered under the Act, as amended, and were acquired for investment and may
not be pledged, hypothecated, publicly sold or transferred (except to
officers, directors, employees, or designees of the Consultant) in the absence
of a Registration Statement effective under the Act for the Shares or an
opinion of counsel satisfactory to the Company that registration is not
required under the Act.
If at any time following the execution of this Agreement the Company
files a Registration Statement with the Securities Exchange Commission, the
holder of the Shares will be entitled to include all of the Shares issued
pursuant to this Agreement or any subsequent share issuance to Consultant or
its designees in the registration statement. Company shall use its best
efforts to make the registration statement effective as soon as is practicable
after its filing.
4) GOOD FAITH PERFORMANCE
In the performance of its services, Consultant shall be obligated to act only
in good faith, and shall not be liable to the Company for errors in judgment
not the result of willful misconduct. Consultant may look to such others for
such factual information, economic advice and/or research upon which to base
its advice to the Company hereunder as Consultant shall in good xxxxx xxxx
appropriate.
5) MISCELLANEOUS
a) Any notice or other communication between parties hereto shall be
sufficiently given if sent by certified or registered mail, postage prepaid,
if to the Company, address to it at 0000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxx 00000, or if to the Consultant, addresses to it at 0000 Xxxxx Xxxxx,
Xxxxx 000 Xxxxxx Xxxxx 00000, or to such addresses as may be hereafter
designated in writing by one party to the other. Such notice or other
communication shall be deemed to be given on the date mailed.
b) Subject to applicable state and federal securities laws, Heartsoft
agrees, during the term of this Agreement, to give at least five days written
notice to Consultant prior to any sale of equity securities of the Company to
a single investor or a series of investors during a single placement as long
as the value of such equity securities values in excess of $250,000 in the
aggregate. The forgoing notwithstanding this section will in no way affect
Heartsoft's right sell any of its equity securities.
c) This Agreement embodies the entire Agreement and understanding
between the Company and the Consultant and supersedes any and all negotiation,
prior discussions and preliminary and prior agreements and understanding
related to the subject matter hereof.
d) This Agreement has been duly authorized, executed and delivered by
and on behalf of the Company and Consultant.
e) This Agreement shall be constructed and interpreted in accordance
with the laws of the State of Texas and venue for any dispute shall lie solely
in Xxxxxx County, Texas.
f) This Agreement and the rights hereunder may not be assigned by
either party (except by operation or law) and shall be binding upon and enure
to the benefit of the parties and their respective successors, assigns and
legal representatives.
g) If at any time while the Shares are not registered and/or are
restricted the Company issues any capital stock (or any warrants, rights,
options, or other securities with rights to equity ownership), other than
issuances pursuant to the Company's approved employee stock option plan,
without consideration or for consideration per share with a value less than
the market price for the Company's common stock, the Company shall offer the
Consultant the opportunity to purchase, at the same price as the new party,
additional shares as is required to maintain Consultant's equity ownership
percentage in Company following such issuance.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date set forth above.
HEARTSOFT, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Chairman & CEO
First Avantus Securities, Inc.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Its Authorized Officer
