EXHIBIT 10 (jj)
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Security Capital Trading, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 1, 1998
The Tirex Corporation
000 Xx. Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xx. Xxxxxxx X. Xxxxx, President
Gentlemen:
We are writing to confirm the terms of the agreement regarding our
rendition of corporate advisory and consulting services to The Tirex Corporation
(the "Company").
During the one year term commencing on the date first above written, we shall
provide the Company with such corporate advisory and consulting services as the
Company may from time to time reasonably request, pursuant to the terms and
subject to the conditions set form below.
1. It is anticipated that, at venous points in tune, the Company will
request that we perform a specific financial advisory seance or
services. In each such case, a separate agreement will be negotiated
which will set forth the services which the Company desires us to
render, which agreement will establish the fees payable to us for
such services. The teams assembled by us will include such members
of our corporate finance and research staff as may be required given
the nature of the particular transaction.
2. In consideration of our commitment to perform such services, and in
lieu of our annual normal retainer, the Company will issue to us or
our designees, one or more three year warrants (the "Warrants")
entitling the holder(s) thereof to purchase an aggregate of
2,000,000 shares of the Company's $.001 par value common stock (the
"Warrant Shares") at the following exercise prices: $.25 per share
for the first 666,666 shares, $.40 per share for the next 666,666
shares and $.50 per share for the remaining 666,667 shares. Such
Warrants, which shall be in the form annexed hereto as Exhibit A,
shall further provide, among other things, that the holder(s)
thereof shall be entitled to exercise such Warrants during the three
year period commencing on the date of issuance hereof, provided,
however that, if the Company shall file a registration statement
(the "Registration Statement") for an underwritten public offering
of its securities (the "Public
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Offering"), and the underwriter or representative of the
underwriters of the Public Offering (the "Underwriter") shall so
require, the holders of the Warrants, and any shares of Common Stock
theretofore issued or thereafter to be issued upon exercise thereof
(the "Warrant Shares") shall lock-up, for a period of not more than
one year from the effective date of the Registration Statement, all
Warrant Shares which shall not have been sold prior to the date of
initial filing of the Registration Statement in normal brokers or
market maker's transactions in the public trading market for the
Common Stock.
3. The Company hereby covenants and agrees that (a) the Warrants will
be, when delivered in accordance with the terms hereof, validly
issued, fully paid and non-assessable; (b) we or our designees, upon
delivery of the Warrants, will acquire good and marketable title to
the Warrants free and clear of any lien, charge, claim, encumbrance,
pledge, security interest, defect or other restriction or equity of
any kind whatsoever, except for any federal or state securities law
restrictions; (c) the Warrant Shares will be, when paid for and
delivered in accordance with the terms of the Warrants, validly
issued, fully paid and non-assessable; (d) we or our designees, upon
delivery of the Warrant Shares, will acquire good and marketable
tide to the Warrant Shares free and clear of any lien, charge,
claim, encumbrance, pledge, security interest, defect or other
restriction or equity of any kind whatsoever, except for any federal
or state securities law restrictions; and (e) the Company, at its
sole cost and expense, will (i) register the Warrant Shares for sale
by us or our designees, as the selling securityholder(s) thereof,
under the Securities Act of 1933, as amended (the "Act"), pursuant
to the next Registration Statement which shall be filed by the
Company with the Securities and Exchange Commission subsequent to
the date of this letter agreement; (ii) will prepare and timely file
such post-effective amendments to such Registration Statement as
shall be necessary to maintain the registration of the Warrant
Shares under the Act until all of the Warrant Shares have been sold
by the holder(s) thereof, or until the Warrants shall expire,
whichever last occurs, and (iii) qualify the Warrant Shares for sale
by the holder(s) thereof under the Blue Sky laws of such states as
we shall reasonably request.
4. The Company will reimburse us for all out-of -pocket expenses which
we shall incur in carrying out the terms of this Agreement.
5. Nothing in this Agreement shall be considered to create the
relationship of employer and employee between the Company and us. We
shall be
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deemed at all tunes to be an independent contractor, without the
power or authority to bind the Company in any manner.
6. The Company agrees to indemnify and hold us and our affiliates,
control persons, directors, officers, employees and agents (each an
"Indemnified Person") harmless from and against all losses, claims,
damages, liabilities, costs or expenses, including those resulting
from any threatened or pending investigation, action, proceeding or
dispute whether or not we are, or any such other Indemnified Person
is, a party to such investigation, action, proceeding or dispute,
answer out of our entering into or performing services under this
Agreement, or arising out of any matter referred to in this
Agreement. This indemnity shall also include our and/or any such
other Indemnified Person's reasonable attorneys' and accountants'
fees and out-of-pocket expenses incurred in, and the cost of our
personnel whose time is spent in connection with, such
investigations, actions, proceedings or disputes which fees,
expenses and costs shall be periodically reimbursed to us and or to
any such other Indemnified Person by the Company as they are
incurred; provided however, that the indemnity herein set forth
shall not apply where a court of competent jurisdiction has made a
final determination that we acted in a grossly negligent manner or
engaged in willful misconduct in the performance of our services
hereunder which gave rise to the loss, claim, damage, liability,
cost or expense sought to be recovered hereunder (but pending any
such final determination the indemnification and reimbursement
provisions hereinabove set forth shall apply and the Company shall
perform its obligations hereunder to reimburse us and/or each such
other Indemnified Person periodically for its, his or their fees,
expenses and costs as they are incurred; such sums to be placed in
escrow pending final determination). The Company also agrees that
neither we nor any Indemnified Person shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to
the Company for or in connection with any act or omission to act by
us as a result of our engagement under this Agreement except for any
such liability for losses, claims, damages, liabilities or expenses
incurred by the Company that is found in a final determination by a
court of competent jurisdiction to have resulted from ours gross
negligence or willful misconduct. If for any reason, the foregoing
indemnification is unavailable to us or any such other Indemnified
Person or insufficient to hold us and such of Indemnified Person
harmless, then the Company shall contribute to the amount paid or
payable by us or any such other Indemnified Person as a result of
such loss, claim, damage, or liability in such proportion as is
appropriate to reflect not only the relative benefits received by
the Company and its shareholders on the one hand and us or any such
other Indemnified Person on the other hand, but also the relative
fault of the Company and us or any such other Indemnified Person, as
well as any relevant equitable considerations; provided that in no
event will the aggregate contribution by us and any such other
Indemnified Person hereunder exceed the amount
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of fees actually received by us pursuant to this Agreement. The
reimbursement, indemnity and contribution obligations of the Company
hereinabove set form (a) shall be in addition to any liability which
the Company may otherwise have; (b) shall be binding upon the
Company and its successors and/or assigns; and (c) shall inure to
the benefit of any successors, assigns, heirs and personal
representatives, as the case may be, of us and any other Indemnified
Person.
7. This agreement sets form the entire understanding of the parties win
respect to the subject matter hereof, supersedes all existing
agreements between us concerning such subject matter, and may be
modified only by a written instrument duly executed by each party.
8. Any waiver by either the Company or us of a breach of any provision
of this Agreement shall not operate or as or be construed to be a
waiver of any other breach of such provision or of any breach of any
other provision of this Agreement. This Agreement shall be binding
upon and inure to the benefit of each of the Company, us and our
respective successors and assigns.
9. The covenants, agreement, representations, and warranties contained
in or made pursuant to this Agreement shall survive the termination
of our engagement hereunder, irrespective of any investigation made
by or on behalf of the Company or us.
10. While there is no commitment on our part, or on the part of the
Company to continue this relationship beyond the end of the Term, it
is the mutual expectation of the parties that the relationship will
continue, and that the parties will negotiate a mutually
satisfactory annual retainer to cover periods subsequent to the end
of the Term.
11. The Company agrees not to make any public announcement of this
Agreement (except as required by law) without our written consent.
12. In the event that the Company fails to perform any of the
obligations required an its part pursuant to this Agreement, we
shall be enticed to receive, as part of any award of damages, the
reasonable fees and disbursements which we shall have paid, or which
we shall owe, to our counsel in connection with our successful
prosecution of such proceedings.
If the foregoing accurately reflects your understanding of the Agreement
between
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the Company and us, please so indicate by signing the enclosed copy of this
letter at the line provided, and return same to us.
Very truly yours,
Security Capital Trading, Inc
By: ___________________________
Xxxxxx Xxxxxxxx, President
The foregoing agreement is acknowledged and accepted this 1st day of April,
1998.
The Tirex Corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx, President
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