Exhibit 4.3
December 22, 1996
Data Systems Network Corporation
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
ATTN.: Xxxxxx X. Xxx
FINANCIAL CONSULTING CONTRACT AND AMENDMENT
OF REPRESENTATIVE'S WARRANT
Gentlemen:
This Agreement made as of December 22, 1996, by and between Data
Systems Network Corporation, a Michigan corporation having its business
address at 00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, XX
00000 (hereinafter the "Company") and X.X. Xxxxxx & Co., Inc., a New York
corporation, having its principal place of business at 0000 Xx. Xxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter "Consultant").
In consideration of the mutual promises contained herein and on the
terms and conditions hereinafter set forth, the Company and Consultant agree
as follows:
1. Provision of Services:
(a) Consultant agrees, to the extent reasonably requested
and required in the conduct of the business of the Company, to place at the
disposal of the Company its judgment and experience and to provide business
development services to the Company including the following:
(i) assist the Company in its public equity
marketing efforts;
(ii) provide access to the Consultant's retail
sales force through road show stops and
conference calls;
(iii) advise with regard to shareholder
relations and public relations
matters.
All such services shall at all times be at the request of
the Company.
(b) Consultant agrees to use its best efforts at all times
in the furnishing of advice and recommendations, and for this purpose
Consultant shall at all times maintain or keep available for the Company an
adequate organization of personnel or a network of outside professionals for
the performance of its obligations under this Agreement.
(c) Consultant agrees to provide advice to the Company
regarding the redemption of the Company's Redeemable Common Stock Purchase
Warrants (the "Warrants").
(d) Consultant agrees to use its best efforts to assist the
Company in the redemption of the Warrants.
(e) Consultant agrees to exercise its Representative's
Warrant subject to market conditions and price levels of the Company's
common stock and warrants.
(f) Consultant agrees the information provided by the
Company shall not be disclosed in whole or in part to any person other than
directors, officers, employees and representatives (including legal and
financial advisers) who need to know the information for the purpose of
providing advice and recommendations (it being understood that such
directors, officers, employees and representatives shall be informed of the
confidential nature of the information and shall be required to treat the
information confidentially).
2. Compensation. The Company agrees to pay the Consultant a
non-refundable fee of Seventy-Five Thousand Dollars ($75,000) payable on
February 20, 1997.
The Company agrees to adjust the exercise price of the
Representative's Warrant from its current level (that being 165 percent of
the public offering price per unit) to $12.50 per unit. The Company also
agrees to adjust the exercise price of the Purchase Warrants within such
units from 165 percent of the public exercise price of the Purchase Warrants
within such units from 165 percent of the public exercise price of the
Purchase Warrants to $6.25 per share (that amount being equal to the public
exercise price of the Purchase Warrant).
The Company agrees to reimburse Consultant for its reasonable
expenses incurred by the Consultant in connection with its services
hereunder. All expenses shall be approved in advance by the Company in
writing.
3. Expenses Payment Schedule. Consultant will invoice the
Company for its actual expenses for each month within fifteen (15) days of
the end of the month. Payment of invoices will be due within 15 days of
receipt.
4. Liability of Consultant. In furnishing the Company with
management advice and other services as herein provided, neither Consultant
nor any officer, director or agent thereof shall be liable to the Company or
its creditors for errors of judgment except in the event of willful
malfeasance, bad faith or gross negligence in the performance of its duties
or reckless disregard of its other obligations and duties under the terms of
this Agreement.
It is further understood and agreed that Consultant may rely upon
information furnished if it is reasonably believed to be accurate and
reliable and that, except as herein provided, Consultant shall not be
accountable for any loss suffered by the Company by reason of the Company's
action or non-action on the basis of any advice, recommendation or approval
of Consultant, its partners, employees or agents.
5. Status of Consultant. Consultant shall be deemed to be an
independent contractor and, except as expressly provided or authorized in
this Agreement, shall have no authority to act for or represent the Company.
6. Other Activities of Consultant. The Company recognizes that
Consultant now renders and may continue to render management and other
services to other companies which may or may not have policies and conduct
activities similar to those of the Company. Consultant shall be free to
render such advice and other services and the Company hereby consents
thereto. Consultant shall not be required to devote its full time and
attention to the performance of its duties under this Agreement, but shall
devote only so much of its time and attention as it deems reasonable or
necessary for such purposes.
7. Control. Nothing contained herein shall be deemed to
require the Company to take any action contrary to its Articles of
Incorporation or By-Laws, or any applicable statute or regulation, or to
deprive its Board of Directors of their responsibility for any control of
the conduct or the affairs of the Company.
8. Term.. Consultant's retention hereunder shall be for a term
of one year commencing upon the execution of this agreement and can be
terminated at any time by either party without any modification to the
aforementioned compensation arrangements.
9. Miscellaneous. This Agreement sets forth the entire
agreement and understanding between the parties and supersedes all prior
discussions, agreements and understandings of every and any nature between
them with respect to the subject matter hereof. This Agreement is executed
in and shall be construed and interpreted according to the laws of the State
of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their respective officers or representatives duly authorized the
day and year first above written.
X.X. XXXXXX & CO., INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Managing Director Corporate
Finance
Accepted and Agreed to:
DATA SYSTEMS NETWORK CORPORATION
By: /s/ Xxxxxx X. Xxx
Xxxxxx X. Xxx
Vice President of Finance
