AGREEMENT TERMS AND CONDITIONS
The contents of this Agreement, dated October 27, 1997,
constitute the terms and conditions governing this AGREEMENT
between ImageMatrix Corporation ("IMCX") and Treuhand, Inc.
("Treuhand") and Xxxxx Xxxxxxx XxXxx ("XxXxx").
WHEREAS IMCX is a publicly held company in the business of
providing software for the health insurance and managed care
industry;
WHEREAS, Treuhand is in the business of consulting for
publicly held companies seeking to raise money in the private and
public capital markets;
WHEREAS, XxXxx is currently Senior Vice President of Business
Development, Chief Financial Officer and Corporate Secretary of
IMCX;
WHEREAS, IMCX desires to contract for Treuhand to provide its
services for IMCX and XxXxx IMCX desire for XxXxx to discontinue
his services as an officer;
NOW, THEREFORE, it is mutually agreed as follows:
1. DEFINITIONS:
As used throughout this Agreement, the following shall have the
meanings below, unless otherwise indicated:
1.1 The term "Agreement" means the terms and conditions contained
herein, all attached Exhibits hereto, and any other documents made
a part of this Agreement or incorporated by reference, including
any written amendments which have been signed by the authorized
representatives of the parties.
1.2 The term "Confidential Information" means any information as
defined in Article 7 of this Agreement.
1.3 The term "Treuhand" means any and all Treuhand employees,
agents, and subcontractors supplied by Treuhand to perform services
for IMCX.
1.4 The term "IMCX" shall include any successors or assignees of
the original IMCX.
1.5 The term "Financing Instrument" shall include any common
stock, preferred stock, options, warrants, or convertible debt sold
or granted with the intention of creating a cash contribution to
IMCX's balance sheet. This shall specifically include, but not be
limited to, the exercise of warrants for cash granted to Xxxxxxx
Trading Company currently outstanding as of the date of this
agreement and any future warrants granted to Xxxxxxx Trading
Company during the term of this agreement.
1.6 The term "Financing Event" shall include any time that a
Financing Instrument results in the actual infusion of cash to IMCX
including, but not limited to, the exercise for cash of any
warrants held by Xxxxxxx Trading Company as of the date of this
agreement.
1.7 The term "Financing Entity" shall include any company,
partnership, fund, individual or other entity which shall invest or
cause money to be invested in IMCX and which Treuhand engaged in
the negotiation of such investment. This shall specifically
include, but not be limited to, Broad Capital Associates and
Xxxxxxx Trading Company.
2. TERM
2.1 This Agreement shall become effective as of the date first
written above, and shall remain in full force and effect until:
a) January 31, 1999, or;
b) The written notice of termination of this Agreement by any
party which can occur anytime 210 days after the date of this
agreement.
c) Not withstanding the above, Treuhand's rights to fees when it
has identified a Financing Entity, participated in meaningful
discussions concerning a Financing Instrument with that Financing
Entity and the aforementioned leads to a Financing Event within one
year of the termination of this Agreement by either party, shall
result in the payment of cash fees and warrants as designated in
the Price and Payment section of this Agreement.
3. PLACE OF PERFORMANCE
8.1 Treuhand shall perform the Responsibilities primarily at
its office in Boulder, Colorado.
4. PRICE AND PAYMENT
4.1 For the performance of the Responsibilities described in this
Agreement, and in accordance with the requirements of this
Agreement, IMCX shall pay to Treuhand the fees in the amounts and
on the terms set forth below:
4.2 For the sale of any Financing Instrument which results in a
Financing Event, Treuhand shall receive a 4% cash fee on the gross
proceeds of cash from the Financing Event if such Financing Event
occurs on or before February 27, 1998. If such Financing Event
occurs after February 27, 1998, a fee of 3% on the gross proceeds
shall be paid.
4.3 Treuhand shall also receive warrants to purchase shares in
IMCX equal to 2.5% of the dollars raised at the price at which
money is raised. For example, one million shares sold at $3.00
would equal 75,000 warrants priced at $3.00.
4.4 All out-of-pocket directly associated with the performance of
duties associated with this Agreement including travel,
entertainment, printing, slide production, long distance and
cellular phone calls.
4.5 For the performance of the Responsibilities described in this
Agreement by IMCX, and in accordance with the requirements of this
Agreement, XxXxx shall resign as Senior Vice President of Business
Development, Chief Financial Officer and
Secretary of the Corporation and wave any right or future claim to severance
payments (estimated at approximately $70,000) owed to him pursuant
to his severance agreement with IMCX.
5. TREUHAND RESPONSIBILITY
5.1 Treuhand shall be responsible to IMCX for all acts related to:
a) Finding, negotiating and closing on transactions requested by
IMCX to raise capital.
b) Working with IMCX corporate counsel to facilitate legal
documentation, SEC documentation and NASDAQ notification and
compliance on other related transaction documentation.
6. IMCX RESPONSIBILITY
6.1 IMCX warrants and agrees to:
a) Provide Treuhand and potential investors with information
necessary to reach an investment decision.
b) Provide for legal and accounting assistance through IMCX's
lawyers and accountants in order to facilitate above closings of
Financing Events.
c) Make Treuhand its exclusive agent and negotiator for raising
capital and similar services (excluding negotiating mergers,
acquisitions or other combinations) for the life of this agreement
or upon termination of said agreement.
7. CONFIDENTIAL INFORMATION
7.1 In order that Treuhand may perform this Agreement, either
party may disclose confidential and proprietary information
pertaining to either party's past, present and future activities,
including, without limitation, research, development, or business
plans, operations or systems; past financial performance and
anticipated financial performance in the future; it is further
recognized that Treuhand will assist in developing material and
information which either party will wish to hold and to be held by
Treuhand as confidential and proprietary information of either
party (collectively, "Confidential Information"). Accordingly,
Treuhand acknowledges that Confidential Information constitutes
valuable trade secrets of either party and agrees to use such
Confidential Information only in performance of this Agreement;
7.2 Neither party shall have an obligation with respect
to any portion of Confidential Information which (a) was
known to it prior to receipt, directly or indirectly, of
such portion from the other party, (b) is lawfully
obtained by either party from a third party under no
obligation of confidentiality, direct or indirect, or (c)
is or becomes known or available without any act or
failure to act by either party. Neither party shall
disclose any portion of the Confidential Information to
any person except those of its employees having a need to
know such portion in order to accomplish the sole purpose
stated above.
7.3 The parties will use the same care and discretion to
avoid disclosure of Confidential Information as they use
with respect to their own similar information that the
parties do not wish to disclose.
7.4 Either party may disclose Confidential Information
to: (i) its employees, agents, subcontractors who have a
need to know, or its affiliates, and employees, agents,
subcontractors or its affiliates who have a need to know
and are on the project team; and (ii) any other party
with the nondisclosing party's prior consent.
7.5 Each party to which Treuhand discloses information
shall be bound by a Non-Disclosure Agreement intended to
keep all information regarding IMCX confidential.
7.6 Each party may disclose Confidential Information to
the extent required by law. However, each party must give
the other party prompt notice.
7.7 This Section shall survive the termination of this
Agreement.
8. INDEMNIFICATION AND HOLD HARMLESS
8.1 Either party agrees to defend, indemnify, and hold the
other party harmless and its officers, employees, and
agents from and against any and all claims, actions,
suits, or proceedings of any kind brought against said
parties for or on account of any matter arising from any
intentional torts or the negligent performance of the
services performed by either party and/or their officers,
employees, or agents under this Agreement.
9. COMPLAINTS and ARBITRATION
9.1 Resolution of Complaints:
Any dispute or question involving the application,
interpretation or performance of this Agreement, shall be
settled, if possible, by amicable and informal
negotiations, allowing such opportunity as may be
appropriate under the circumstances for fact-finding and
mediation. However, if any such complaint cannot be
resolved in this fashion, said complaint shall be
submitted to binding arbitration, following the procedure
set forth in Section 9.2 hereof.
9.2 Arbitration Procedures
(a) Either party shall initiate the arbitration process by giving
to the other written notice, which shall clearly describe the
underlying complaint as to which arbitration is requested.
(b) The question(s) or dispute(s) shall be referred to arbitration
before a panel composed of one arbitrator designated by Treuhand,
one arbitrator designated by IMCX and a third arbitrator chosen by
the two thus designated. In the event that the agreement ads to
the third arbitrator cannot be reached within fourteen (14) days
from the date that arbitration was requested, the third arbitrator
shall be drawn by lot by a representative of Treuhand from two
candidates, one nominated by IMCX and one by Treuhand,
respectively.
(c) The panel of arbitrators shall determine the question(s) or
dispute(s) referred to them as expeditiously as possible in
accordance with the procedures of the American Arbitration
Association for the handling of such matters, except as such
procedures may conflict with applicable state laws, It is
understood and agreed that, as to the substantive issues submitted
to arbitration, the panel of arbitrators is not bound by any rules,
principles or interpretations of law in their
resolution. In all cases, the decision of the panel of
arbitrators shall be final and binding upon the parties,
and judgment on the award of the arbitration panel may be
entered in any court of competent jurisdiction.
The costs of the arbitration will be borne by the
party or parties against whom any decision is rendered.
10. HEADINGS
10.1 Headings used in this agreement are for convenience of
reference only and shall not be construed as altering the
meaning of an Article or this Agreement.
11. APPLICABLE LAW
11.1 This Agreement shall be interpreted, construed and
governed by the laws of the State of Colorado, without
regard to conflict of law provisions.
12. SURVIVAL
12.1 All obligations, which by their nature survive the expiration,
cancellation or termination of this Agreement, shall remain in
effect after its expiration, termination or cancellation.
13. SEVERABILITY
13.1 If any provision of this Agreement is held to be illegal,
invalid or unenforceable, the remaining terms shall not
be affected. The Agreement shall be interpreted as if
the illegal, invalid or unenforceable provision had not
been included in it, and the invalid or unenforceable
provision shall be replaced by a mutually acceptable
provision which, being valid and enforceable, comes
closest to the intention of the Parties underlying the
invalid or unenforceable provision.
14. NOTICES
14.1 Under this Agreement, if one party is required to give
notice to the other, such notice shall be deemed given
five (5) days after being deposited in the U.S. Mail,
First Class Postage Pre-Paid and addressed as follows (or
as subsequently noticed to the other party): Treuhand,
c/x Xxxxx Xxxxxxx XxXxx, President, 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000. IMCX, Xxxxxx Xxxxxx, President
and COO, 000 Xxxxx Xxxxxxxx, Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000.
15. ASSIGNMENTS
15.1 Rights to this contract may not be assigned by Treuhand
to any third party with the written consent of the IMCX,
except to a person which currently (as of October 27,
1997) controls in excess of 51% of Treuhand common stock.
15.2 In the event that the IMCX is acquired by, merged with,
or sells substantially all of its assets to another
person or entity (a "Successor Entity"), IMCX shall have
the right to assign and convey all of its rights and
obligations under this agreement to the Successor Entity,
provided Treuhand is given written notice.
16. SIGNING AUTHORITY
16.1 The undersigned represent and warrant that they have the
legal capacity and authority to enter into this
Agreement.
17. GENERAL AGREEMENT
17.1 This Agreement constitutes the entire understanding of the
Parties, and supersedes all prior or contemporaneous written and
oral agreements, with respect to the subject matter. This
Agreement may not be modified or amended except in writing signed
by both Parties. Any person not a Party to this Agreement shall
not have any interest or be deemed a third-party beneficiary to
this Agreement. Both parties acknowledge that they will be engaged
in lengthy and protracted efforts to position IMCX for a private
placement or public offering of its shares. Such activities
require the clearance of regulatory approval. Such clearance is
often contingent upon the proper structure of agreements. Should
corporate counsel designate that changes to the above agreement
should be made to meet such requirements, both parties agree to
make such changes, and to do so in a way which does not have a
materially negative impact on either party, based on the terms and
conditions of this Agreement.
ImageMatrix Corporation Treuhand Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. XxXxx
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Signature Signature
Xxxxxx X. Xxxxxxxxx Xxxxx X. XxXxx
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Name Name
Chief Executive Officer President
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Title Title
October 31, 1997 October 31, 1997
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Date Signed Date Signed
