Exhibit 10.14
XXXXXXX XXXX
0000 Xxxxxxxx - Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
000-000-0000
000-000-0000 (Cell)
September 5, 2003
Xx. Xxxxx Xxxxxx
Chairman and Chief Executive Officer
Interactive Systems Worldwide Inc.
0 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Dear Xx. Xxxxxx:
This letter will confirm my understanding concerning providing assistance to
Interactive Systems Worldwide Inc. ("ISWI"), a Delaware corporation in
attempting to obtain private equity financing for ISWI and/or any of its
subsidiaries or affiliates (collectively the "Company"). We have agreed as
follows:
1. The Company hereby retains Xxxxxxx Xxxx ("Finder") on a non-exclusive basis
to introduce the Company to sources which might provide private equity financing
for the Company as herein described.
2. The Finder agrees to use his best efforts to introduce the Company to
possible sources of private equity financing for the Company.
3. A source of financing shall be deemed a party introduced by the Finder
hereunder upon written disclosure of the identity of such prospective source
having been provided by the Finder and received by the Company during the Term
of this Agreement and prior
to the Company having learned of the identity of such prospective source from
any other source and having had discussions with such potential source;
provided, however, that if the Company knew of a prospective source prior to
disclosure by the Finder but the Company had not had any discussions with such
source relating to a Transaction (as defined in Section 4) and provided that the
Company is not obligated to pay a finder's or similar fee to any other person
with respect to a potential Transaction with such source, the Finder shall
nonetheless be entitled to a Fee, subject to the terms herein provided.
4. In the event that the Company consummates a transaction by which the Company
obtains private equity financing through the sale of any of its capital stock,
warrants, or options to acquire its capital stock, or the sale of any other
security by the Company convertible into its common stock, or notes,
(collectively, the "Transaction"), with a person, firm, or entity or an
affiliate thereof, introduced to the Company by the Finder as provided in
Section 3 during the Term , then the Company shall pay to the Finder the "Fee"
(as hereinafter defined). The Company retains the right to determine all of the
terms and conditions of any Transaction and to accept or reject any proposals
submitted to it in its sole and absolute discretion.
5. The term of the Agreement ("Term") shall commence on the date hereof and
continue until January 31, 2004, unless extended by mutual agreement of the
parties.
6. (a) In the event that any source of financing introduced to the Company (as
provided in Section 3) by the Finder enters into a Transaction with the Company
which Transaction closes during the Term, the Fee to which the Finder shall be
entitled shall be calculated as follows:
(i) Six percent (6%), payable to the Finder in cash, of the Gross Proceeds
("Gross Proceeds") invested in the Company in the Transaction (by such sources
introduced by the Finder) ;
(ii) Warrants to purchase Common Stock of the Company ("Common Stock") equal to
ten percent (10%) of the number of shares of Common Stock (or the number of
shares of Common Stock initially issuable upon the conversion of Preferred Stock
of the Company) sold by the Company to the sources of financing introduced
Finder in the Transaction;
(iii) If within one year of the date of the Closing of the Transaction, if any,
the Company closes any additional private equity financing of its debt or equity
securities with any investors who participated in the Transaction and who were
introduced by the Finder, the Company shall pay to the Finder upon the closing
of such subsequent Transaction an additional fee in cash and Warrants calculated
in the same manner as set forth in (i) and (ii) above with respect, however,
only to the additional financing from investors introduced by the Finder; and
(iv) If within one year of the date of the Closing of the initial Transaction,
Warrants, if any, issued to investors introduced by the Finder in the initial
Transaction are exercised for cash, in a transaction that generates cash
proceeds for the Company (and not if such Warrants are exercised on a cashless
basis or in a transaction in which such Warrants are exercised or converted into
securities), the Finder shall be paid a fee in cash equal to 5%
2
of the amount of cash received by the Company in connection with the exercise of
such Warrants.
In any instance where any cash or securities are required to be returned to the
source of the financing introduced by the Finder within 90 days of the closing
of the Transaction, the Finder shall promptly return to the Company, a
proportionate amount of the Fee paid to him attributable to the portion of the
financing which is in effect reduced by reason of such subsequent return of cash
or securities.
(b) Any Fee due to the Finder shall be payable to the Finder if, and only if,
the Transaction closes. "Gross Proceeds" shall mean the cash consideration paid
or provided to the Company. If the Gross Proceeds are provided to the Company
over time, the Fee shall be paid to the Finder over time and shall be paid to
the Finder as the consideration is paid to the Company, in proportion to the
Gross Proceeds paid to the Company. Except as provided in Section 6(d), the
Company shall not be obligated to pay any expenses of the Finder for such things
as travel, express mail, long distance phone calls and similar expenses.
(c) The Warrants to be issued to the Finder as provided in Section 6 (a) (ii)
and (iv) shall be exercisable at a price equal to 120% of the "Market Price" (as
herein defined). Market Price shall mean the five day volume weighted average
("VWAP") prior to the closing of the initial Transaction or subsequent
Transaction, as applicable. The Warrants shall have a term of five years from
issuance at the Closing, be exercisable on a cashless basis, and have
registration and anti-dilution rights similar to those included in warrants
issued to investors providing the private equity financing in the Transaction,
all as set forth in a Warrant Agreement to be delivered to the Finder at the
closing of the Transaction.
(d) In addition to the fee payable to the Finder, the Company shall reimburse
Finder for any travel and entertainment, out-of-pocket expenses paid by the
Finder in connection with performing the services provided for in this Agreement
provided that the Company approves such expenses prior to them being incurred by
the Finder.
7. Subject to the terms of Sections 4, 5 and 6, the Fee shall be paid to the
Finder within 5 business days after the closing of the Transaction. Within ten
(10) days after the end of the Term, the Finder shall provide the Company with a
list of the names of the persons, firms and entities to whom the Finder has
introduced the Company during the Term.
8. It is expressly understood and acknowledged that Xxxxxx's relationship with
the Company does not constitute any commitment, expressed or implied, on the
part of Finder or any of its affiliates to purchase or place the Company's
securities or to provide any type of financing an that this engagement will be
conducted by Finder on a "best efforts" basis. Furthermore, it is also expressly
understood and acknowledged that the Finder will only introduce the Company to
Investors and that the Finder will not structure, negotiate or sell securities
to the Investors.
9. The parties hereto hereby agree to execute any and all such further documents
or instruments reasonably required by either party to carry out and effectuate
the terms and conditions of this Agreement. This Agreement shall be binding upon
and shall inure to
3
the benefit of the parties hereto and their respective successors, assigns and
legal representatives.
10. The Company agrees to indemnify Finder ("Indemnified Party") against any
liability, claim or damage, asserted by third parties arising out of or in
connection with acts, errors, or omissions of the Company under this Agreement
and for Finder's performance of its duties under this engagement except those
arising from Xxxxxx's willful misconduct or gross negligence. The Company agrees
to pay or reimburse Indemnified Party for all reasonable, documented expenses
(including reasonable counsel fees and expenses) as they are incurred in
connection with the defense of any pending or threatened claim or any action or
proceeding arising therefrom in which such Indemnified Party is or is threatened
to be made a party. To the extent this indemnity is unenforceable or unavailable
for any reason, the Company and Finder will contribute to any liability, claims
or damage asserted by third parties and related expenses, described above in
this paragraph, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and its shareholders, on the one hand, and
Finder, on the other, or (ii) if that allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not just those relative
benefits, but also the relative fault of the Company and Finder (giving due
regard to, among other things, the information supplied by each and their
relative intent, knowledge, access to information and opportunity to correct or
prevent misstatements or omissions). In any event, to the extent permitted by
law, the Indemnified Parties' share of any losses or damages shall not exceed
the amount of the cash fee actually paid to Finder by the Company. The Finder
shall provide prompt written notice of the receipt of any claim to the Company,
permits the Company to defend such claim with counsel of its choice and the
Finder shall not settle any claim for which it seeks indemnity from the Company
without the prior written consent of the Company.
11. No amendments, modifications or additions to this Agreement shall be binding
unless in writing and signed by both parties. In the event any provision in this
Agreement is held to be invalid, void, or unenforceable, all other provisions of
the Agreement shall, nonetheless, remain in full force and effect and shall in
no way be effected, impaired, or invalidated. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any person.
12. The terms of this Agreement shall be interpreted in accordance with the
internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. The parties hereto: (i) agree
that any dispute shall be heard in and by state or federal court located within
the Southern District of New York; (ii) hereby waive any objection to
jurisdiction of said courts with respect to any action instituted against them
as provided herein; and (iii) agree not to assert any defense based on lack of
jurisdiction. Each party hereto also waives personal service of any and all
process upon it and consents that all such service of process shall be made by
certified mail directly to said party at the address set forth below the
signature of each part's authorized representative.
4
13. This Agreement constitutes the entire agreement between the parties and
supercedes all prior understandings, and any memoranda of understanding with
respect to the subject matter hereof.
14. Any fee payable to the Company hereunder shall be reduced by an amount equal
to any fee or other remuneration directly or indirectly paid or payable to the
Finder by the party to the Transaction other than the Company or any affiliates
of such other party.
15. It is understood that the Finder is an independent contractor and shall not
be considered (as the agent of the Company for any purposes whatsoever, and the
Finder is not granted any right or authority to assume or create any obligation
or liability, express or implied, on the Company's behalf, or to bind the
Company in any manner or thing whatsoever.
16. This Agreement may not be assigned by either party without the consent of
the other; provided that the Finder may assign to Xxxxxx Xxxxxx up to 20% of the
Fee, if any, to which the Finder may become entitled.
5
If the foregoing reflects your understanding of the terms of our agreement,
please sign the duplicate copy of this letter and return it to me.
Very truly yours,
Interactive Systems Worldwide Inc.
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
/s/ Xxxxxxx Xxxx
---------------------------
Xxxxxxx Xxxx
6
