EXHIBIT 10.2
[TRILOGY CAPITAL PARTNERS, INC. LOGO]
LETTER OF ENGAGEMENT
SENSE HOLDINGS, INC.
SEPTEMBER 19, 2005
The following sets forth the agreement for the engagement of Trilogy Capital
Partners, Inc. ("TRILOGY") by Sense Holdings, Inc. ("SEHO" or the "COMPANY"):
TERM AND Twelve months, commencing as of the date set forth above
TERMINATION (the "INITIAL TERM"), and terminable thereafter by either
party upon 30 days' prior written notice. Notwithstanding
the foregoing, either party may terminate this Agreement by
written notice to the other party if such other party
materially breaches or defaults in the performance of its
obligations or agreements under this Agreement or the
Warrants and such breach or default is not cured or
corrected within 30 days of written notice of such breach.
OBJECTIVE The development and implementation of a proactive marketing
program designed to increase the investor awareness of SEHO
in the investment community and generate a significant
increase in liquidity and market capitalization.
THE PROGRAM Trilogy will structure and implement a marketing program
designed to create extensive financial market and investor
awareness for SEHO to drive long-term shareholder support.
The core drivers of the program will be to create
institutional and retail buying in the Company's stock
through a proactive sales and marketing program emphasizing
technology-driven communications and leveraging SEHO's image
to attract additional long-term investors and to create
additional acquisition and business development
opportunities. As share price is affected by various
factors, Trilogy can give no assurance that the marketing
program will result in an increase in SEHO's stock price.
Trilogy understands that during any period in which the
Company is in "registration" for a public offering of
securities under the Securities Act of 1933, and during the
distribution of such securities, the Company's investor
relations and marketing efforts will be severely limited.
However, it will be the responsibility of the Company (with
the advice of its securities counsel) to determine what
investor relations and financial marketing efforts are
permissible and non-permissible during such periods, and
Trilogy will follow the direction of the Company and its
securities counsel.
RESPONSIBILITIES Trilogy will structure and implement the program described
above in accordance with a marketing plan provided to SEHO.
Trilogy will work in conjunction with the Company's
management, securities counsel, investment bankers, auditors
and marketing director, and under supervision of executive
management. Trilogy will designate a principal account
representative to SEHO responsible for this engagement.
The content is as follows:
o Campaign Planning, Development and Execution
o Press Announcements: drafting, approval and
distribution
o Database Development and Management
o Image Analysis: recommendations and
implementation
o Messaging: institutional and retail
o Online presentations: drafting and
production responsibilities
o Website Overhaul - installation and
maintenance of auto IR program
o Email messaging: targets: Retail and
Institutional/Other databases
o Media including Interactives and PowerPoints
o Direct Mail: shareholder, media, SEHO
relationship universe
o Public Relations
o Capital Conferences
Trilogy will not publish or publicly release any press
release or other public communication or document referring
to the Company ("IR DOCUMENTS") regarding the Company that
has not been approved in writing by the Company. The Company
assumes responsibility for the accuracy and completeness of
all IR Documents and the compliance of such IR Documents
with applicable laws, rules and regulations. The Company
agrees that Trilogy has no obligation or duty to verify the
accuracy or completeness of the IR Documents.
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CONFIDENTIALITY Trilogy agrees that all Confidential Information shall
AND MATERIAL remain the property of the Company and will be held and
INFORMATION treated by Trilogy and its affiliates, directors, officers
and employees (collectively, the "REPRESENTATIVES") in
confidence and will not, except as provided in this
Agreement, without the prior written consent of the Company,
be disclosed by Trilogy or its Representatives, in any
manner whatsoever, in whole or in part, and will not be used
by Trilogy or its Representatives other than in connection
with performing the duties and responsibilities of Trilogy
under this Agreement.
"CONFIDENTIAL INFORMATION" means all technical, commercial,
financial or other information concerning the business,
affairs and operations of the Company and its affiliates and
which the Company or its agents or representatives have
provided or will provide to Trilogy in connection with its
services hereunder whether provided in writing,
electronically or verbally. Notwithstanding the foregoing,
the following will not constitute "Confidential Information"
for purposes of this Agreement: (i) information which is
available in the public domain or marketplace; (ii)
information which after disclosure to Trilogy by the Company
becomes part of the public domain by publication or
otherwise, expect by breach by Trilogy of the terms of this
Agreement; (iii) information which was rightfully in the
possession of Trilogy at the time of disclosure to Trilogy
by the Company; and (iv) information which is rightfully
received by Trilogy from a third party who is not prohibited
from transmitting the information to Trilogy by a
contractual, legal or fiduciary obligation to the Company.
FEES $12,500 per month, with first payment due on execution.
Wiring information is set forth below.
EQUITY SEHO has concurrently herewith issued to Trilogy 3,500,000
COMPENSATION Warrants, each Warrant representing the right to purchase
one share of Common Stock for $0.19 per share.
It is expressly understood that the Company has agreed to
file a Registration Statement with the Securities and
Exchange Commission registering for resale the shares
underlying the Warrants no later than 45 days from the date
of this Letter of Engagement.
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MARKETING To support the financial marketing program, SEHO
BUDGET acknowledges that it will incur certain third party
marketing costs. Trilogy will not incur these costs on
behalf of the Company except with the approval of the
Company or pursuant to a budget approved by the Company
(which budget shall not be less than $200,000). The Company
shall have no obligation to reimburse Trilogy for any third
party marketing cost that exceeds the approved budget or is
otherwise not approved by the Company. The Company
understands that prompt payment of these costs is vital to
the on-going investor relations program, and therefore shall
pay these costs promptly upon invoice, to Trilogy (to enable
Trilogy to promptly reimburse these third parties). The
Company shall indemnify and hold Trilogy harmless from any
losses, claims, costs, expenses, liabilities and damages
from failure to timely pay these third party marketing
costs.
INDEMNIFICATION The Company agrees to provide the indemnification set forth
in "Exhibit A" attached hereto.
CORPORATE The obligations of Trilogy under this Agreement are solely
OBLIGATIONS corporate obligations, and no officer, director, employee,
agent, shareholder or controlling person of Trilogy shall be
subject to any personal liability whatsoever to any person,
nor will any such claim be asserted by or on behalf of any
other party to this Agreement.
ADDITIONAL If Trilogy is called upon to render services directly or
SERVICES indirectly relating to the subject matter of this Agreement,
beyond the services contemplated above (including, but not
limited to, production of documents, answering
interrogatories, giving depositions, giving expert or other
testimony, whether by agreement, subpoena or otherwise), the
Company shall pay to Trilogy a reasonable hourly rates for
the persons involved for the time expended in rendering such
services, including, but not limited to, time for meetings,
conferences, preparation and travel, and all related costs
and expenses and the reasonable legal fees and expenses of
Trilogy's counsel.
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SURVIVAL OF The Sections entitled "Indemnification" (including "Exhibit
CERTAIN A"), "Corporate Obligations" and "Additional Services" shall
PROVISIONS survive any termination of this Agreement and Trilogy's
engagement pursuant to this Agreement. In addition, such
termination shall not terminate Trilogy's right to
compensation accrued through the date of termination and for
reimbursement of allowed expenses (including third party
marketing costs). Any purported termination of this
Agreement by the Company prior to the end of the Initial
Term other than for material breach or default in accordance
with "Term and Termination" above, or any termination by
Trilogy as a result of non-payment or other material breach
by the Company (including the failure to pay third-party
marketing costs), shall not terminate Trilogy's right to the
fees through the entire Initial Term (as Trilogy's time and
commitment are expected to be greater in the first part of
its engagement).
SERVICES/COSTS The compensation paid to Trilogy under this Agreement will
cover all costs for services by Trilogy and Trilogy
personnel. Travel and entertainment costs for Trilogy
personnel, in addition to certain third-party costs, will be
borne by the Company and included in the marketing budget
prepared by Trilogy. Trilogy will provide reasonable
documentation to support reimbursement claims. Trilogy will
not incur any particular reimbursable cost of $500 or more
without the written approval from the Company. These
reimbursable costs are not third-party marketing costs under
"Marketing Budget."
ATTORNEYS' FEES If any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing
party shall be entitled to recover as an element of its
costs, and not its damages, reasonable attorneys' fees to be
fixed by the court.
GOVERNING LAW New York, without giving effect to the principles of
conflicts of law thereof.
[SIGNATURES ON FOLLOWING PAGE.]
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_______________________________
Agreed and Accepted:
SENSE HOLDINGS, INC. TRILOGY CAPITAL PARTNERS, INC.
By _______________________________ By _______________________________
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
President and CEO President
Wiring:
Trilogy Capital Partners, Inc.
Signature Bank New York
Private Client Group
New York, NY 10016
Account: 1500565515
ABA: ▇▇▇▇▇▇▇▇▇
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EXHIBIT A
INDEMNIFICATION PROVISIONS
Sense Holdings, Inc. (the "COMPANY") unconditionally, absolutely and irrevocably
agrees to and shall indemnify and hold harmless Trilogy Capital Partners, Inc.
("TRILOGY") and its past, present and future directors, officers, affiliates,
counsel, shareholders, employees, agents, representatives, contractors,
successors and assigns (Trilogy and such persons are collectively referred to as
the "INDEMNIFIED PERSONS") from and against any and all losses, claims, costs,
expenses, liabilities and damages (or actions in respect thereof) arising out of
or related to this Agreement, and any actions taken or omitted to be taken by an
Indemnified Party in connection with this Agreement ("INDEMNIFIED CLAIM").
Without limiting the generality of the foregoing, such indemnification shall
cover losses, claims, costs, expenses, liabilities and damages imposed on or
incurred by the Indemnified Persons, directly or indirectly, relating to,
resulting from, or arising out of any: (i) actual or alleged misstatement of
fact or omission of fact, or any actual or alleged inaccuracy in any information
provided or approved by the Company in connection with the engagement, including
any actual or alleged misstatement, omission or inaccuracy in any SEC filing,
press release, website, marketing material or other document, or oral
presentation or webcast, whether or not the Indemnified Persons relied thereon
or had knowledge thereof. In addition, the Company agrees to reimburse the
Indemnified Persons for legal or other expenses reasonably incurred by them in
respect of each Indemnified Claim at the time such expenses are incurred.
Notwithstanding the foregoing, the Company shall not be obligated under the
foregoing for any loss, claim, liability or damage that is finally determined by
a court with proper jurisdiction to have resulted primarily from the willful
misconduct or bad faith of the Indemnified Person.
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