EXHIBIT 10.7
ADVISORY AND INVESTMENT BANKING AGREEMENT
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This Agreement is made and entered into as of the ____ day of
________________, 2002 by and between ViewTrade Securities, Inc., a Florida
corporation ("ViewTrade"), and EONNET MEDIA, Inc., a Florida corporation
(the "Company").
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Purpose: The Company hereby engages ViewTrade for the
term specified in Paragraph 2 hereof to render consulting advice to the Company
as an investment banker relating to financial and similar matters upon the terms
and conditions set forth herein.
2. Term: Except as otherwise specified in paragraph 4
hereof, this Agreement shall be effective from ______________, 2002 to
_______________, 2004.
3. Duties of ViewTrade: During the term of this Agreement,
ViewTrade shall seek out Transactions (as hereinafter defined) on
behalf of the Company and shall furnish advice to the Company in connection with
any such Transactions.
4. Compensation: In consideration for the services
rendered by ViewTrade to the Company pursuant to this Agreement (and in addition
to the expenses provided for in Paragraph 5 hereof), the Company shall
compensate ViewTrade as follows:
(a) The Company shall pay ViewTrade a fee of
$5,208.33 per month during the term of this Agreement. The sum of $125,000
shall be payable in full on the date of this Agreement;
(b) In the event that any Transaction (as herein-
after defined) occurs during the term of this Agreement or one year thereafter,
the Company shall pay fees to ViewTrade as follows:
Consideration Fee
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$ - 0 - to $ 500,000 Minimum fee of $25,000
$ 500,000 to $5,000,000 5% of Consideration
$5,000,000 or more $250,000 plus 1% of the
Consideration in excess of
$5,000,000
For the purposes of this Agreement, "Consideration" shall mean
the total market value on the day of the closing of stock, cash, assets and all
other property (real or personal) exchanged or received, directly or indirectly
by the Company or any of its security
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holders in connection with any Transaction. Any co-broker retained by
ViewTrade shall be paid by ViewTrade.
For the purposes of the Agreement, a "Transaction" shall mean
(a) any transaction originated by ViewTrade, other than in the ordinary course
of trade or business of the Company, whereby, directly or indirectly, control of
or a material interest in the Company or any of its businesses or any of their
respective assets, is transferred for Consideration, (b) any transaction
originated by ViewTrade whereby the Company acquires any other company or the
assets of any other company or an interest in any other company (an "Acquisi-
tion") or (c) any sale or Acquisition in connection with which the Company
engages an investment banker other than ViewTrade and pays such investment
banker a fee in respect of such Transaction.
In the event ViewTrade originates a line of credit with a
lender, the Company and ViewTrade will mutually agree on a satisfactory fee and
the terms of payment of such fee; provided, however, that in the event the
Company is introduced to a corporate partner by ViewTrade in connection with a
merger, acquisition or financing and a credit line develops directly as a result
of the introduction, the appropriate fee shall be the amount set forth in the
schedule above. In the event ViewTrade introduces the Company to a joint venture
partner or customer and sales develop as a result of the introduction, the
Company agrees to pay a fee of five percent (5%) of
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total sales generated directly from this introduction during the first two years
following the date of the first sale. Total sales shall mean cash receipts less
any applicable refunds, returns, allowances, credits and shipping charges and
monies paid by the Company by way of settlement or judgment arising out of
claims made by or threatened against the Company. Commission payments shall be
paid on the 15th day of each month following the receipt of customers' payment.
In the event any adjustments are made to the total sales after the commission
has been paid, the Company shall be entitled to an appropriate refund or credit
against future payments under this Agreement. All fees to be paid pursuant to
this Agreement, except as otherwise specified, are due and payable to ViewTrade
in cash at the closing or closings of any transaction specified in Paragraph 4
hereof. In the event that this Agreement shall not be renewed or if terminated
for any reason, notwithstanding any such non-renewal or termination, ViewTrade
shall be entitled to a full fee as provided under Paragraphs 4 and 5 hereof,
for any transaction for which the discussions were initiated during the term of
this Agreement and which is consummated within a period of twelve months after
non-renewal or termination of this Agreement.
5. Expenses of ViewTrade: In addition to the fees payable
hereunder, and regardless of whether any transaction set forth in
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Paragraph 4 hereof is proposed or consummated the Company shall reimburse
ViewTrade for all fees and disbursements of ViewTrade's counsel and ViewTrade's
travel and out-of-pocket expenses incurred in connection with the services
performed by ViewTrade pursuant to this Agreement, including without limitation,
hotels, food and associated expenses and long-distance telephone calls, except
that ViewTrade shall obtain the Company's prior written consent for any expense
exceeding $500.
6. Liability of ViewTrade:
(1) The Company acknowledges that all opinions and
advice (written or oral) given by ViewTrade to the Company in connection with
ViewTrade's engagement are intended solely for the benefit and use of the
Company in considering the transaction to which they relate, and the Company
agrees that no person or entity other than the Company shall be entitled to make
use of or rely upon the advice of ViewTrade to be given hereunder, and no such
opinion or advice shall be used for any other purpose or reproduced,
disseminated, quoted or referred to at any time, in any manner or for any
purpose, nor may the Company make any public references to ViewTrade, or use
ViewTrade's name in any annual reports or any other reports or releases of the
Company without ViewTrade's prior written consent.
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(2) The Company acknowledges that ViewTrade makes no
commitment whatsoever as to making a market in the Company's securities or to
recommending or advising its clients to purchase the Company's securities.
Research reports or corporate finance reports that may be prepared by ViewTrade
will, when and if prepared, be done solely on the merits or judgment of analysis
of ViewTrade or any senior corporate finance personnel of ViewTrade.
7. ViewTrade's Services to Others: The Company acknowledges
that ViewTrade's or its affiliates are in the business of providing financial
services and consulting advice to others. Nothing herein contained shall be
construed to limit or restrict ViewTrade in conducting such business with
respect to others, or in rendering such advice to others.
8. Company Information:
(a) The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, ViewTrade will
use and rely on data, material and other information furnished to ViewTrade by
the Company. The Company acknowledges and agrees that in performing its services
under this engagement, ViewTrade may rely upon the data, material and other
information
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supplied by the Company without independently verifying the accuracy,
completeness or veracity of same.
(b) Except as contemplated by the terms hereof or as
required by applicable law, ViewTrade shall keep confidential all material non-
public information provided to it by the Company, and shall not disclose such
information to any third party, other than such of its employees and advisors as
ViewTrade determines to have a need to know.
9. Indemnification:
a. The Company shall indemnify and hold ViewTrade
harmless against any and all liabilities, claims, lawsuits, including any and
all awards and/or judgments to which it may become subject under the Securities
Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934,
as amended (the "Act") or any other federal or state statute, at common law or
otherwise, insofar as said liabilities, claims and lawsuits (including awards
and/or judgments) arise out of or are in connection with the services rendered
by ViewTrade or any transactions in connection with this Agreement, except for
any liabilities, claims and lawsuits (including awards and/or judgments),
arising out of acts or omissions of ViewTrade. In addition, the Company shall
also indemnify and hold ViewTrade harmless
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against any and all costs and expenses, including reasonable counsel fees,
incurred or relating to the foregoing.
ViewTrade shall give the Company prompt notice of any
such liability, claim or lawsuit which ViewTrade contends is the subject matter
of the Company's indemnification and the Company thereupon shall be granted the
right to take any and all necessary and proper action, at its sole cost and
expense, with respect to such liability, claim and lawsuit, including the right
to settle, compromise and dispose of such liability, claim or lawsuit, excepting
therefrom any and all proceedings or hearings before any regulatory bodies
and/or authorities.
ViewTrade shall indemnify and hold the Company harmless
against any and all liabilities, claims and lawsuits, including any and all
awards and/or judgments to which it may become subject under the 1933 Act, the
Act or any other federal or state statute, at common law or otherwise, insofar
as said liabilities, claims and lawsuits (including awards and/or judgments)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact required to be stated or necessary to make the statement
therein, not misleading, which statement or omission was made in reliance upon
information furnished in writing to the Company by or on behalf of ViewTrade for
inclusion in any registration statement or prospectus or any amendment or
supplement thereto in connection with any transaction
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to which this Agreement applies. In addition, ViewTrade shall also indemnify and
hold the Company harmless against any and all costs and expenses, including
reasonable counsel fees, incurred or relating to the foregoing.
The Company shall give to ViewTrade prompt notice of
any such liability, claim or lawsuit which the Company contends is the subject
matter of ViewTrade's indemnification and ViewTrade thereupon shall be granted
the right to a take any and all necessary and proper action, at its sole cost
and expense, with respect to such liability, claim and lawsuit, including the
right to settle, compromise or dispose of such liability, claim or lawsuit,
excepting therefrom any and all proceedings or hearings before any regulatory
bodies and/or authorities.
b. In order to provide for just and equitable
contribution under the Act in any case in which (i) any person entitled to
indemnification under this Section 9 makes claim for indemnification pursuant
hereto but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 10 provides for
indemnification in such case, or (ii) contribution under the Act may be required
on the part of any such person in circumstances for which
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indemnification is provided under this Section 10, then, and in each such case,
the Company and ViewTrade shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after any contribution from
others) in such proportion taking into consideration the relative benefits
received by each party from the offering covered by the prospectus with respect
to any transactions in connection with this Agreement (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was assessed, the opportunity to correct and prevent any statement or
omission and other equitable considerations appropriate under the circumstances;
provided, however, that notwithstanding the above in no event shall ViewTrade be
required to contribute any amount in excess of 10% of the public offering price
of any securities to which such Prospectus applies; and provided, that, in any
such case, no person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Within fifteen (15) days after receipt by any party to
this Agreement (or its representative) of notice of the commencement of any
action, suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party
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(the "Contributing Party"), notify the Contributing Party of the commencement
thereof, but the omission so to notify the Contributing Party will not relieve
it from any liability which it may have to any other party other than for
contribution hereunder. In case any such action, suit or proceeding is brought
against any party, and such party notifies a Contributing Party or his or its
representative of the commencement thereof within the aforesaid fifteen (15)
days, the Contributing Party will be entitled to participate therein with
the notifying party and any other Contributing Party similarly notified. Any
such Contributing Party shall not be liable to any party seeking contribution on
account of any settlement of any claim, action or proceeding effected by such
party seeking contribution without the written consent of the Contributing
Party. The indemnification provisions contained in this Section 10 are in
addition to any other rights or remedies which either party hereto may have with
respect to the other or hereunder.
10. ViewTrade an Independent Contractor : ViewTrade shall
perform its services hereunder as an independent contractor and not as an
employee of the Company or an affiliate thereof. It is expressly understood and
agreed to by the parties hereto that ViewTrade shall have no authority to act
for, represent or bind the Company or any
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affiliate thereof in any manner, except as may be agreed to expressly by the
Company in writing from time to time.
11. Miscellaneous:
(1) This Agreement between the Company and ViewTrade
constitutes the entire agreement and understanding of the parties hereto, and
supersedes any and all previous agreements and understandings, whether oral or
written, between the parties with respect to the matters set forth herein.
(2) Any notice or communication permitted or
required hereunder shall be in writing and shall be deemed sufficiently given if
hand-delivered or sent (i) postage prepaid by registered mail, return receipt
requested, or (ii) by facsimile, to the respective parties as set forth below,
or to such other address as either party may notify the other in writing:
If to the Company, to: Eonnet Media, Inc.
0000 000xx Xxxxxx Xxxxx, Xxx 000
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Xxxxx & Xxxxxxx
100 N. Tampa Street, Ste 2700
Xxxxx, Xxxxxxx 00000
If to ViewTrade, to: ViewTrade Securities, Inc.
000 Xxxx Xxxxxxxx Xxxx Xx., Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
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with a copy to: XXXXXX X. XXXXXX
Gersten, Savage, & Xxxxxxxxx, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(3) This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
legal representatives and assigns.
(4) This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
(5) No provision of this Agreement may be amended,
modified or waived, except in a writing signed by all of the parties hereto.
(6) This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida, without giving effect to
conflict of law principles. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in West Palm Beach, Florida, and they hereby
submit to the exclusive jurisdiction of the courts of the State of Florida
located in West Palm Beach, Florida, and of the federal courts in Florida with
respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Agreement, and consent to the service of process in any such action or
legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth in Paragraph 11(b) hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
VIEWTRADE SECURITIES, INC.
By:________________________________
EONNET MEDIA, INC.
By:________________________________
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